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[ { "docid": "22863548", "title": "", "text": "The CHIEF JUSTICE delivered the opinion of the court. We think the action was properly brought,-and that it may be maintained. The right of the Indians in the land from wdiich the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The fee was in the United States, subject only to this right of occu pancy. This is the title by which other Indians hold their lands. It was so decided by this court as early as 1823, in Johnson v. McIntosh. The authority of that case has never been doubted. The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant. This right of use and occnpancy by the Indians is unlimited. They may exercise it at their discretion. If the lands in a state of nature are not in a condition for profitable use, they may be made so. If desired for the purposes of agriculture, they may be cleared of their timber to such an extent as may'be reasonable under the circumstances. The timber taken oft'by the Indians in such clearing may be sold by them. But to justify any cutting of the timber, except for use upon the premises, as timber or its product, it must be done in good faith for the improvement of the land. The improvement must be the principal thing, and the cutting of the timber the incident only. Any cutting beyond this would be waste and unauthorized. The timber while standing is a part of the realty, and it can only be sold as the land could be. The land cannot be sold by the Indians, and consequently the timber, until rightfully severed, cannot be. It can be rightfully severed for the purpose of improving the land, or the better adapting it to convenient occupation, but for no other purpose. When rightfully severed it is no longer a part" } ]

[ { "docid": "6394208", "title": "", "text": "been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.’ Cramer v. United States, 261 U.S. 219, 227, 43 S.Ct. 342, 344, 67 L.Ed. 622. This policy was first recognized in Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Mitchel v. United States, 9 Pet. 711, 9 L.Ed. 283; Chouteau v. Molony, 16 How. 203, 14 L.Ed. 905; Holden v. Joy, 17 Wall. 211, 21 L.Ed. 523; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. As stated in Mitchel v. United States, supra, 9 Pet. [711] at page 746, 9 L.Ed. 283, Indian ‘right of occupancy is considered as sacred as the fee-simple of the whites.’ Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not excepted from the policy to respect Indian right of occupancy. Though the Cramer case involved the problem of individual Indian occupancy, this Court stated that such occupancy was not to be treated differently from ‘the original nomadic tribal occupancy.’ 261 U.S. [219] at page 227, 43 S.Ct. [342], 67 L.Ed. 622. Perhaps the assumption that aboriginal possession would be respected in the Mexican Cession was, like the generalizations in Johnson v. McIntosh, supra, not necessary for the narrow holding of the case. But such generalizations have been so often and so long repeated as respects land under the prior sovereignty of the various European nations including Spain, that like other rules governing titles to property (United States v. Title Insurance & Trust Co., 265 U.S. 472, 486, 487, 44 S.Ct. 621, 623, 68 L.Ed. 1110) they should now be considered no longer open. * * * “Nor is it true, as respondent urges, that a tribal claim to any particular lands must be based upon a treaty, statute, or other formal government action. As" }, { "docid": "22877320", "title": "", "text": "ancestral home of the Walapais, that such occupancy constituted “Indian title” within the meaning of § 2 of the 1866 Act, which the United States agreed to extinguish, and that in absence of such extinguishment the grant to the railroad “conveyed the fee subject to this right of occupancy.” Buttz v. Northern Pacific Railroad, 119 U. S. 55, 66. The Circuit Court of Appeals concluded that the United States had never recognized such possessory rights of Indians within the Mexican Cession and that in absence of such recognition the Walapais had no such right good against grantees of the United States. Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted'definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had “Indian title” which, unless extinguished, survived the railroad grant of 1866. Buttz v. Northern Pacific Railroad, supra. “Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.” Cramer v. United States, 261 U. S. 219, 227. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. 543, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U. S. 111. As stated in Mitchel v. United States, supra, p. 746, Indian “right of occupancy is considered as sacred as the fee simple of the whites.” Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not excepted from the policy to respect Indian right of occupancy. Though the Cramer case involved the problem" }, { "docid": "22740815", "title": "", "text": "515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad[, 119 U. S. 55]; United States v. Shoshone Tribe, 304 U. S. 111. As stated in Mitchel v. United States, supra, p. 746, Indian ‘right of occu pancy is considered as sacred as the fee simple of the whites.’ ” The Santa Fe case also reaffirmed prior decisions to the effect that a tribal right of occupancy, to be protected, need not be “based upon a treaty, statute, or other formal government action.” Id., at 347. Tribal rights were nevertheless entitled to the protection of federal law, and with respect to Indian title based on aboriginal possession, the “power of Congress ... is supreme.” Ibid. As indicated in Santa Fe, the fundamental propositions which it restated were firmly rooted in earlier cases. In Johnson v. M’Intosh, 8 Wheat. 543 (1823), the Court refused to recognize land titles originating in grants by Indians to private parties in 1773 and 1775; those grants were contrary to the accepted principle that Indian title could be extinguished only by or with the consent of the general government. The land in question, when ceded to the United States by the State of Virginia, was “occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.” Id., at 586. See also id., at 591-597, 603. The possessory and treaty rights of Indian tribes to their lands have been the recurring theme of many other cases. The rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent apply in all of the States, including the original 13. It is true that the United States never held fee title to the Indian lands in the original States as it did to almost all the rest of the continental United States and that fee title to Indian lands in these States; or the pre-emptive right" }, { "docid": "22740814", "title": "", "text": "the first Nonintercourse Act passed in 1790, 1 Stat. 137, 138, which provided that “no sale of lands made by any Indians . . . within the United States, shall be valid to any person ... or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” This has remained the policy of the United States to this day. See 25 U. S. C. § 177. In United States v. Santa Fe Pacific B. Co., 314 U. S. 339, 345 (1941), a unanimous Court succinctly summarized the essence of past cases in relevant respects: “ 'Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States. Cramer v. United States, 261 U. S. 219, 227. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. 543, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad[, 119 U. S. 55]; United States v. Shoshone Tribe, 304 U. S. 111. As stated in Mitchel v. United States, supra, p. 746, Indian ‘right of occu pancy is considered as sacred as the fee simple of the whites.’ ” The Santa Fe case also reaffirmed prior decisions to the effect that a tribal right of occupancy, to be protected, need not be “based upon a treaty, statute, or other formal government action.” Id., at 347. Tribal rights were nevertheless entitled to the protection of federal law, and with respect to Indian title based on aboriginal possession, the “power of Congress ... is supreme.” Ibid. As indicated in Santa Fe, the fundamental propositions which it restated were firmly rooted in earlier cases. In Johnson v. M’Intosh, 8 Wheat. 543 (1823), the Court refused to recognize land titles originating in grants by Indians to private parties in 1773 and 1775; those" }, { "docid": "22033740", "title": "", "text": "Indian nations held “aboriginal title” to lands they had inhabited from time immemorial. See Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947). The “doctrine of discovery” provided, however, that discovering nations held fee title to these lands, subject to the Indians’ right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign. Oneida I, 414 U. S., at 667. See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 19-49 (1979). With the adoption of the Constitution, Indian relations became the exclusive province of federal law. Oneida I, supra, at 670 (citing Worcester v. Georgia, 6 Pet. 515, 561 (1832)). From the first Indian claims presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the “unquestioned right” of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1,17 (1831), and stated that the Indians’ right of occupancy is “as sacred as the fee simple of the whites.” Mitchel v. United States, 9 Pet. 711, 746 (1835). This principle has been reaffirmed consistently. See also Fletcher v. Peck, 6 Cranch 87, 142-143 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Clark v. Smith, 13 Pet. 195, 201 (1839); Lattimer v. Poteet, 14 Pet. 4 (1840); Chouteau v. Molony, 16 How. 203 (1854); Holden v. Joy, 17 Wall. 211 (1872). Thus, as we concluded in Oneida I, “the possessory right claimed [by the Oneidas] is a, federal right to the lands at issue in this case.” 414 U. S., at 671 (emphasis in original). Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal common-law right to sue to enforce their aboriginal land rights. In Johnson v. McIntosh, supra, the Court declared invalid two private purchases of Indian land that occurred in 1773 and 1775 without the Crown’s consent. Subsequently in Marsh v. Brooks, 8 How. 223," }, { "docid": "17648698", "title": "", "text": "forty acres on Kawkawling River, described by metes and bounds, “unto the said children of Bowkotonden, and their heirs forever,” the patent containing these words, “but never to be conveyed by them or their heirs without the consent and permission of the President of the United States.” The particular, land here in question .is a part of the six hundred and forty acres reserved by the above treaty for the ’ use of the children of Bokowtonden and their heirs, and embraced by the patent of 1827. What rights were acquired, under and by virtue'of the treaty, by those children? In Jones v. Meehan, 175 U. S. 1, 8, 21, where one of the questions was as to the nature of the title that passed under an Indian treaty ceding lands to the United States, and which required a certain number of acres to be set apart from the ceded lands for a named Indian chief, this court said: “Was it a mere right of occupancy, with no power to convey the land except to the United States or by their consent? Or was it substantially a title in fee simple with full power of alienation? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by thé Indians to any one but the United States without the consent of the United States,” — citing Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463; United States v. Cook, 19 Wall. 591; United States v. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 67. But in that case, after an extended review of previous decisions, this court further said: “The clear résult of this series of decisions is that when the United States, in a treaty with an Indian tribe," }, { "docid": "22777758", "title": "", "text": "bore and continue to bear towards the government of the United States. .To uphold the claim would be to adjudge that thé indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained. Now, it is true that in decisions of this court, the Indian right of occupancy of tribal .lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) 8 Wheat. 543, 574; Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 48; Worcester v. Georgia, (1832) 6 Pet. 515, 581; United States v. Cook, (1873) 19 Wall. 591, 592; Leavenworth &c. R. R. Co. v. United States, (1875) 92 U. S. 733, 755; Beecher v. Wetherby, (1877) 95 U. S. 517, 525. But in none of these cases was there involved a controversy between Indians and. the government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected States or individuals. In one of the cited cases it was clearly pointed - out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U. S. 517, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the court said (p. 525): “" }, { "docid": "23526395", "title": "", "text": "the Indians. The court held, at p. 564, that “To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.” And, at p. 564 and 565, the court said: “Now, it is true that in decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) 8 Wheat. 543, 574; Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 48; Worcester v. Georgia, (1832) 6 Pet. 515, 581; United States v. Cook, (1873) 19 Wall. 591, 592; Lemenworth &c R. R. Co. v. United States, (1875) 92 U. S. 733, 755; Beecher v. Wetherby, (1877) 95 U. S. 517, 525. But in none of these cases was there involved a controversy between Indians and the Government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected States or individuals. In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and' that such authority might be implied, even though opposed’ to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 96 U. S. 617, discussing the claim that there had been a prior reservation of land by treaty to the use of a certain tribe of Indians, the" }, { "docid": "22375895", "title": "", "text": "any Indians,” in the plural, the words “ any Indian,” in the singular, so as to read: “ No purchase, grant, lease or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” 1 Stat. 472, 746. And this language of the temporary acts of 1796 and 1799 was repeated in the first permanent enactment upon the subject, being the act of March 30, 1802, c. 13, § 12. 2 Stat. 143. It is well settled that a good title to parts of the lands of an Indian tribe may be granted to individuals by a treaty between the United States and the tribe, without any act of Congress; or any patent from the Executive authority of the United States. Johnson v. McIntosh, 8 Wheat. above cited; Mitchel v. United States, 9 Pet. 711, 748; Doe v. Beardsley, 2 McLean, 417, 418; United States v. Brooks, 10 How. 442, 460; Doe v. Wilson, 23 How. 457, 463; Crews v. Burcham, 1 Black, 356; Holden v. Joy, 17 Wall. 211, 247; Best v. Polk, 18 Wall. 112, 116; New York Indians v. United States, 170 U. S. 1. The question in every case is whether the terms of the treaty are such as to manifest the intention of the parties to make a present grant to the persons named. The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall’s description, that “ they are in a state of pupilage,” and “ their relation to the United States resembles that of a ward to his guardian,” has become more and more appropriate as they have grown less powerful and more dependent. Cherokee Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U. S. 94, 99; United States v. Kagama, 118 U." }, { "docid": "17648699", "title": "", "text": "the United States or by their consent? Or was it substantially a title in fee simple with full power of alienation? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by thé Indians to any one but the United States without the consent of the United States,” — citing Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463; United States v. Cook, 19 Wall. 591; United States v. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 67. But in that case, after an extended review of previous decisions, this court further said: “The clear résult of this series of decisions is that when the United States, in a treaty with an Indian tribe, and as part of the consideration for the cession by the tribe of a tract of country to the United States, make a reservation to a chief or other member of the tribe of a specified number of sections of land, whether already identified, or to be surveyed and located in the future, the treaty itself converts the reserved sections into individual property; the reservation, unless accompanied by words limiting its effect, is equivalent to a present grant of a complete title in fee simple; and that title is alienable by the grantee at his pleasure, unless the United States, by a provision of the treaty, or of an act of Congress, have expressly or impliedly prohibited or restricted its alienation.” Did an alienable title in fee simple pass to the children of Bokowtonden by virtue of the treaty -of 1819-20? That question was under consideration in the courts of Michigan a long while ago and was answered in the affirmative; and it wouid seem that their construction of the provisions in question has become" }, { "docid": "8705344", "title": "", "text": "the Federal Government, held the ultimate legal fee to the public lands, the State legislature could extinguish Indian title 'at will. The first legislature may have attempted just that when, on April 29, 1846, it declared that it recognized no title at all in Indian tribes within the State of Texas. Our view is different: that the State could not extinguish Indian title (at least without the Indians’ consent) and that only the Federal Government had the power, to abrogate aboriginal ownership by unilateral action. It makes no difference that the lands were State-owned; the Federal Government’s power stemmed, not from the ownership of public lands in this instance, but more importantly from the general grant of the right to deal with Indians. The Constitution has vested in the national government the authority to regulate Indian affairs: “That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several States, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions.” Worcester v. State of Georgia, supra, 31 U.S. (6 Pet.) at 438. One aspect of this federal authority is clearly the power to extinguish Indian title. The many decisions in this area do not speak in conventional property terms — inquiring into the powers of the holder of the fee title — but are broadly concerned with those powers which are conferred upon the sovereign by the nation’s basic law. “The power of Congress * * * [to extinguish Indian title] is supreme * * *. As stated by Chief Justice Marshall in Johnson v. McIntosh, supra, p. 586, ‘the exclusive right of the United States to extinguish’ Indian title has never been doubted.” United States v. Santa Fe Pac. R.R., supra, 314 U.S. at 347. This has been held by the Supreme Court from the beginning. See Worcester v. State of Georgia, supra; Clark v. Smith, 38 U.S. (13 Pet.) 195, 201 (1839); Buttz" }, { "docid": "22777757", "title": "", "text": "in such manner as to deprive, without his consent, any individual member of the tribe of his rights to any tract of land selected by him as provided in article III (VI) of this treaty.” The appellants base their right to relief on the proposition that by the effect of the article just quoted the confederated tribes of Kiowas, Comanches and Apaches were vested with an interest in the lands held in common within the reservation, which interest could not be divested by Congress in any other mode than that specified in the said twelfth article, and that as a result of the said stipulation the interest of the Indians in. the common lands fell within the protection of the Fifth Amendment to the Constitution of the United States, and such interest — indirectly at least — came under the control of the judicial branch of the government. We are unable to yield our assent to this view. The contention in effect ignores the status' of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. .To uphold the claim would be to adjudge that thé indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained. Now, it is true that in decisions of this court, the Indian right of occupancy of tribal .lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as sometimes expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) 8 Wheat. 543, 574; Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 48; Worcester v. Georgia, (1832) 6 Pet. 515, 581; United States v. Cook, (1873) 19 Wall. 591, 592; Leavenworth &c. R. R. Co. v." }, { "docid": "22260127", "title": "", "text": "commerce. Cf. Pollard v. Hagan, 3 How. 212, 229 (1845). Finally, it must be remembered that the United States accompanied its grants to petitioners with the promise that “no part of the land granted to them shall ever be embraced in any Territory or State.” In light of this promise, it is only by the purest of legal fictions that there can be found even a semblance of an understanding (on which Oklahoma necessarily places its principal reliance), that the United States retained title in order to grant it to some future State. We thus conclude that the United States intended to and did convey title to the .bed of the Arkansas River below its junction with the Grand River within the present State of Oklahoma in the grants it made to peti tioners. The judgments of the Court of Appeals are therefore reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. Mr. Justice Harlan took no part in the consideration or decision of these cases. E. g., Treaty of October 2, 1798, 7 Stat. 62; Treaty of December 17, 1801, 7 Stat. 66; Treaty of October 25, 1805, 7 Stat. 93. See Johnson v. McIntosh, 8 Wheat. 543 (1823); Fletcher v. Peck, 6 Cranch 87, 142-143 (1810). See Act of March 26, 1804, §15, 2 Stat. 289. In 1802, even before it had acquired new lands west of the Missisáppi, “the United States agreed to extinguish Indian title within the limits of the States as soon as it could be done 'peaceable [sic] and on reasonable terms.’ ” U. S. Interior Dept., Federal Indian Law 180-181 (1958). See n. 3, supra. The efforts on behalf of the Cherokees remaining in Georgia included two cases that were brought to this court, Cherokee Nation v. Georgia, 5 Pet. 1 (1831), and Worcester v. Georgia, 6 Pet. 515 (1832). For a recent account of these and other Cherokee efforts, see Burke, The Cherokee Cases: A Study in Law, Polities, and Morality, 21 Stan. L. Rev. 500 (1969). See generally Federal Indian Law, supra, n." }, { "docid": "18950549", "title": "", "text": "“as sacred as that of the United States to the fee,” i. e., as sacred as the fee title of the sovereign itself. See also Mitchel v. United States, 9 Pet. 711, 746, 34 U.S. 711, 746, 9 L.Ed. 283; Minnesota v. Hitchcock, 185 U.S. 373, 389, 22 S.Ct. 650, 46 L.Ed. 954; Shoshone Tribe v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 81 L.Ed. 360; United States v. Alcea Band of Tillamooks, supra. In Johnson v. McIntosh, supra, 8 Wheat. 543, 574, 585, 588, 592, 603, 21 U.S. 543 at pages 574, 585, 588, 592, 603, 5 L.Ed. 681, Mr. Chief Justice Marshall stressed the point that, wherever the fee simple title might reside, it could be held in Indian land “subject only to the Indian right [or title] of occupancy.” Like a leitmotif, this quoted phrase runs through the Chief Justice’s opinion and through subsequent decisions of the Supreme Court. European grants could “convey a title to the grantees, subject only to the Indian right of occupancy.” Either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty [ending the Revolutionary War], “subject only to the Indian right of occupancy.” The title of the crown was absolute, “subject only to the Indian right of occupancy.” The absolute ultimate title has been considered as acquired by discovery, “subject only to the Indian title of occupancy.” The claim of government extends to the complete ultimate title, “charged with this right of possession.” See also United States v. Cook, supra, 19 Wall. 591, 592, 593, 86 U.S. 591 at pages 592, 593, 22 L.Ed 210; Buttz v. Northern Pacific R., supra, 119 U.S. 55 at page 67, 7 S.Ct. 100, 30 L.Ed. 330; Minnesota v. Hitchcock, supra, 185 U.S. 373 at page 389, 22 S.Ct. 650, 46 L.Ed. 954. 3. The Indian Right of Occupancy is Compensable. It would be indulgence in pious and- high-sounding but empty generalizations to say that the Indian right to occupancy is “sacred,” and at the same time to refuse to" }, { "docid": "23469321", "title": "", "text": "U. S. 119 (1938); Chippewa Indians v. United States, 301 U. S. 358 (1937); Shoshone Tribe v. United States, 299 U. S. 476 (1937); United States v. Creek Nation, 295 U.S. 103 (1935). Other cases also draw no distinction between original Indian title and “recognized” Indian title. “The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the government. When Indian reservations were created, either by treaty or executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.” Spalding v. Chandler, 160 U. S. 394, 403 (1896). Of similar tenor is Conley v. Ballinger, 216 U. S. 84, 90-91 (1910). The older cases explaining and giving substance to the Indian right of occupancy contain no suggestion that only “recognized” Indian title was being considered. Indeed, the inference is quite otherwise. Mitchel v. United States, 9 Pet. 711,746 (1835); Worcester v. Georgia, 6 Pet. 515, 543-48 (1832); Johnson v. McIntosh, 8 Wheat. 543, 573-74 (1823). Duwamish Indians v. United States, 79 Ct. Cl. 530 (1934). 45 Stat. 1256, as amended in respects immaterial here, 47 Stat. 307. “The decade from 1930 to 1939 is as notable in the history of Indian legislation as that of the 1830’s or the 1880's.” Cohen, Handbook of Federal Indian Law (1945) 83. Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899). Mr. Justice Black, concurring. Before Congress passed the special Act under which this suit was brought, I think that the Government was under no more legal or equitable obligation to pay these respondents than it was under obligation to pay whatever descendants are left of the numerous other tribes whose lands and homes have been taken from them since the Nation was founded. See Northwestern Shoshone Indians v. United States, 324 U. S. 335, 354-358, concurring opinion. It seems pretty clear" }, { "docid": "22375892", "title": "", "text": "to any one but the United States, without the consent of the United States. Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463; United States v. Cook, 19 Wall. 591; United States v. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 67. In the leading case of Johnson v. McIntosh, (1823) it was therefore held that grants of lands northwest of the river Ohio, made in 1773 and 1775 by the chiefs of certain Indian tribes, constituting the Illinois and the Pinkeshaw nations, ito private individuals, conveyed no title which could be recognized in the courts of the United States; and Chief Justice Marshall, in delivering judgment, said: “ The usual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated.” 8 Wheat. 598. Accordingly, by several early treaties between the United States of the one part, and the Chippewas and other Indian nations of the other part, the said Indian nations acknowledged themselves to be under the protection of the United States, and of no other sovereign whatever; the United States relinquished and quitclaimed to the said nations respectively all the lands lying within certain limits, to live and hunt upon, and otherwise occupy as they saw fit; but the said nations, or either of them, were not to be at liberty to dispose of those lands, except to the United States. Treaties of January 1, 1785, art. 2; January 9, 1789, art. 3; August 3, 1795, arts. 4, 5; 7 Stat. 16, 29, 52. Soon after the adoption of the Constitution, the same doctrine was repeatedly recognized and enforced by Congress in temporary acts regulating trade and intercourse with the Indian tribes. By the act of July 22, 1790, c. 33, § 4, it was “enacted and declared that no sale of lands made by any Indians, or" }, { "docid": "13826955", "title": "", "text": "that possessory interest). F. Cohen, Handbook of Federal Indian Law 321 n. 372 (1942). For another thing, the courts did not otherwise recognize transactions involving this “right of occupancy.” Because the owner of fee title held the “exclusive right to extinguish” the “right of occupancy”, Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 585, 5 L.Ed. 681 (1823), efforts by Indians to convey their possessory rights were not recognized by American courts. Instead, one who purchased such rights from the Indians “incorporate[d] himself with them;” if the Indians chose to take their rights back, as far as the U.S. courts were concerned, that was up to them. Id. at 593. All these, and related rules, were explained by Chief Justice Marshall in Johnson v. McIntosh, and were reaffirmed in subsequent cases. See, e.g., Oneida Indian Nation v. County of Oneida, 414 U.S. at 667-74, 94 S.Ct. at 777-80; Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-81, 75 S.Ct. 313, 317-18, 99 L.Ed. 314 (1955); United States v. Santa Fe Pacific Railroad Co., 314 U.S. 339, 345-46, 62 S.Ct. 248, 251, 86 L.Ed. 260 (1941); United States v. Shoshone Tribe of Indians, 304 U.S. 111, 115-16, 58 S.Ct. 794, 797-98, 82 L.Ed. 1213 (1938); Cramer v. United States, 261 U.S. 219, 229-30, 43 S.Ct. 342, 344-45, 67 L.Ed. 622 (1923); Buttz v. Northern Pacific Railroad, 119 U.S. 55, 66-67, 7 S.Ct. 100, 104-105, 30 L.Ed. 330 (1886); Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440 (1877); Mitchel v. United States, 34 U.S. (9 Pet.) 711, 9 L.Ed. 283 (1835) (Marshall, C.J.); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832) (Marshall, C.J.); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831) (Marshall, C.J.); Jackson v. Porter, 13 F.Cas. 235, 240 (N.D.N.Y.Cir.Ct.1825) (No. 7,143). Against this background, one might argue that the Massachusetts statutes giving Indians fee title and the power to alienate land, were not efforts to take land rights from the Indians, but rather efforts to convey the state’s fee title to them and thereby to grant them their lands" }, { "docid": "22375891", "title": "", "text": "to the occupancy or use of the strip; and that the plaintiffs were entitled to have the rights and privileges under the earlier lease vested and quieted in them as against the claims of the defendant. 70 Fed. Rep. 453. The defendant appealed to this court. The fundamental question in the case is, What was the nature of the title which the elder chief Moose Dung took under the treaty of October 2, 1863, between the United States and the Red Lake and Pembina bands of Chippewa Indians ? Was it a mere, right of occupancy, with no power to convey the land except to the United States or by their consent? Or was it substantially a title in fee simple with full power of alienation ? Undoubtedly, the right of the Indian nations or tribes to their lands within the United States was a right of possession or occupancy only; the ultimate title in fee in those lands was in the United States; and the Indian title could not be conveyed by the Indians to any one but the United States, without the consent of the United States. Johnson v. McIntosh, 8 Wheat. 543; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Worcester v. Georgia, 6 Pet. 515, 544; Doe v. Wilson, 23 How. 457, 463; United States v. Cook, 19 Wall. 591; United States v. Kagama, 118 U. S. 375, 381; Buttz v. Northern Pacific Railroad, 119 U. S. 55, 67. In the leading case of Johnson v. McIntosh, (1823) it was therefore held that grants of lands northwest of the river Ohio, made in 1773 and 1775 by the chiefs of certain Indian tribes, constituting the Illinois and the Pinkeshaw nations, ito private individuals, conveyed no title which could be recognized in the courts of the United States; and Chief Justice Marshall, in delivering judgment, said: “ The usual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated.” 8 Wheat. 598. Accordingly," }, { "docid": "22877321", "title": "", "text": "the railroad grant of 1866. Buttz v. Northern Pacific Railroad, supra. “Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.” Cramer v. United States, 261 U. S. 219, 227. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. 543, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U. S. 111. As stated in Mitchel v. United States, supra, p. 746, Indian “right of occupancy is considered as sacred as the fee simple of the whites.” Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not excepted from the policy to respect Indian right of occupancy. Though the Cramer case involved the problem of individual Indian occupancy, this Court stated that such occupancy was not to be treated differently from “the original nomadic tribal occupancy.” (p. 227.) Perhaps the assumption that aboriginal possession would be respected in the Mexican Cession was, like the generalizations in Johnson v. M’Intosh, supra, not necessary for the narrow holding of the case. But such generalizations have been so often and so long repeated as respects land under the prior sovereignty of the various European nations, including Spain, that, like other rules governing titles to property (United States v. Title Insurance & Trust Co., 265 U. S. 472, 486-487) they should now be considered no longer open. Furthermore, treaties negotiated with Indian tribes, wholly or partially within the Mexican Cession, for delimitation of their occupancy rights or for the settlement and adjustment of their boundaries, constitute clear recognition that no different policy as respects aboriginal possession obtained in this area than in other areas. And see United States v. Kagama, 118 U. S. 375, 381. Certainly it would take plain and unambiguous action" }, { "docid": "6394207", "title": "", "text": "that such right of occupancy through aboriginal possession should, in order to give the United States full legal ownership, be extinguished by purchase through ratified treaties, agreements, or acts of Congress made and enacted pursuant to the power of Congress over the property and affairs of Indian tribes for their benefit. In United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345-347, 62 S.Ct. 248, 251, 86 L.Ed. 260, the court said: “Occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact. If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais (as distinguished from lands wandered over by many tribes), then the Walapais had ‘Indian title’ which, unless extinguished, survived the railroad grant of 1866. Buttz v. Northern Pacific Railroad, supra, [119 U.S. 55, 66, 7 S.Ct. 100, 104, 30 L.Ed. 330], “ ‘Unquestionably it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.’ Cramer v. United States, 261 U.S. 219, 227, 43 S.Ct. 342, 344, 67 L.Ed. 622. This policy was first recognized in Johnson v. McIntosh, 8 Wheat. 543, 5 L.Ed. 681, and has been repeatedly reaffirmed. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483; Mitchel v. United States, 9 Pet. 711, 9 L.Ed. 283; Chouteau v. Molony, 16 How. 203, 14 L.Ed. 905; Holden v. Joy, 17 Wall. 211, 21 L.Ed. 523; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. As stated in Mitchel v. United States, supra, 9 Pet. [711] at page 746, 9 L.Ed. 283, Indian ‘right of occupancy is considered as sacred as the fee-simple of the whites.’ Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were" } ]

[ { "docid": "1155184", "title": "", "text": "of the salary reduction annuity plans for FICA and income tax withholding purposes cannot constitutionally be applied retroactively. The district court rejected these arguments and granted the government’s motion for a summary judgment. It followed Temple Univ. v. United States, 769 F.2d 126 (3d Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986), in which the Third Circuit addressed these issues and rejected the taxpayer’s claim. Recently, the Second Circuit arrived at the same ultimate determination in Canisius College v. United States, 799 F.2d 18 (2d Cir.1986). The Third Circuit concluded that the Treasury had correctly interpreted the statutes as they applied before the 1983 and 1984 amendments. On this point, the Second Circuit disagreed. See id. at 22 n. 7; Temple Univ. v. United States, 769 F.2d at 129-30. As we explain infra, we find the Second Circuit’s reasoning more persuasive. Both courts, however, fundamentally agreed on the other arguments raised by the taxpayers, and each arrived at the same ultimate determination. We adopt the reasoning set forth in Canisius College and, therefore, reject the Hospital’s arguments. II. THE REVENUE RULING During the period for which the Hospital seeks a refund — from 1980 to 1982 — the statutes contained nearly identical definitions of “wages” subject to FICA taxes and income tax withholding. For income tax withholding, “wages” were defined as “all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.” I.R.C. § 3401 (1982). “Wages” were defined for FICA taxes as “all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash.” I.R.C. § 3121(a). The FICA and income tax provisions also contained similarly worded exclusions from taxable wages for contributions to annuity plans. For an annuity contract purchased by a section 501(c)(3) employer for its employees, the statute provided that “amounts contributed by such employer for such annuity contract ... shall be excluded from the gross income of the employee” until the fund" } ]

[ { "docid": "1155192", "title": "", "text": "Congress intended that the nearly identical provisions be interpreted differently, we conclude that Revenue Ruling 65-208 was an incorrect interpretation of the law and had no statutory basis. III. THE STATUTORY AMENDMENTS In 1983, Congress amended the statutes to codify Revenue Ruling 65-208. See S.Rep. No. 23, 98th Cong., 1st Sess. 41, reprinted in 1983 U.S.Code Cong. & Ad. News 143, 182. Section 3121(a)(2) was amended by deleting the exclusion from FICA wages for retirement plans. Social Security Amendments of 1983, Pub.L. No. 98-21, § 324(a)(3)(A), 97 Stat. 65, 123. A new section was added so that employer payments “under or to an annuity contract described in section 403(b), other than a payment for the purchase of such contract which is made by reason of a salary reduction agreement” are excluded from FICA wages, making it clear that salary reduction plans are subject to FICA taxes. Social Security Amendments of 1983 § 324(a)(2)(C), 97 Stat. at 122 (codified at I.R.C. § 3121(a)(5)(D) (1986)). Additionally, Congress enacted a general “decoupling” section that provides: “Nothing in the regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from ‘wages’ as used in such chapter shall be construed to require a similar exclusion from ‘wages’ in the regulations prescribed for purposes of this chapter [ (relating to FICA taxes) ].” Social Security Amendments of 1983 § 327(d)(1), 97 Stat. at 127 (codified at I.R.C. § 3121(a) (1986)). These amendments initially were applicable only to remuneration paid after December 31,1983. As part of the Deficit Reduction Act of 1984, however, Congress gave retroactive effect to the decoupling provision “to remuneration ... paid after March 4, 1983, and to any such remuneration paid on or before such date which the employer treated as wages when paid.” Deficit Reduction Act of 1984, Pub.L. No. 98-369, § 2662(g), 98 Stat. 494, 1160. Because this amendment retroactively applied the 1983 provisions to remuneration “the employer treated as wages when paid,” it could be read as applying only to taxes levied in accordance with the regulations invalidated in Rowan. But as the Second" }, { "docid": "2071514", "title": "", "text": "1.403(b)-l(b)(3), T.D. 6783, 29 Fed. Reg. 18,360 (1964). . More specifically, 26 U.S.C. § 3121(a), in the tax year in issue, provided that wages for FICA purposes are \"all remuneration for employment, including the cash value of all remuneration paid in any medium other than cash.” 26 U.S.C. § 3401(a) provided that wages for purposes of income-tax withholding are “all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.\" “Wages” are also the basis for determining employer obligations for Federal Unemployment Tax Act (FUTA) purposes. The general definition of FUTA wages is identical to the one for FICA wages. See 26 U.S.C. § 3306(b). . Social Security Amendments of 1983, § 324(d)(1), 97 Stat. 125. . 1983 Act, § 327(d)(1), 97 Stat. 127. . In this regard, our determination differs from that of the Third Circuit in Temple University v. United States, 769 F.2d 126, 129-30 (3d Cir.1985), cert. denied, — U.S.-, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986). The court in Temple concluded that 65-208 was a correct interpretation of the statutory exclusion from FICA wages, which, in the court’s view, did not encompass employer payments made under salary reduction plans. Our ultimate determination in this case is, however, in harmony with the decision in Temple. . It is to be noted that statutory interpretation as reflected in a revenue ruling does not have the force of law and is of little aid in interpreting a tax statute. See Dixon v. United States, 381 U.S. 68, 73, 85 S.Ct. 1301, 1304, 14 L.Ed.2d 223 (1965); Biddle v. Commissioner, 302 U.S. 573, 582, 58 S.Ct. 379, 383, 82 L.Ed. 431 (1938); Temple University v. United States, supra, 769 F.2d at 137 (Weis, J., dissenting). . As we have previously indicated, the rationale given in 65-208 itself for this discrepancy in the interpretation of the similar terminology in section 403(b) and in the FICA wage exclusion was that the \"purposes of section 403(b) ... and [of the FICA" }, { "docid": "17734159", "title": "", "text": "used to finance railroad employee retirement benefits which railroad employees receive in lieu of social security benefits. These taxes are imposed on “compensation.” Taxes imposed by FICA are used to finance social security and medicare benefits and are imposed on \"wages.” . Unlike the federal income-tax regime, under RRTA and FICA, when a common parent files a single return, each component company in a consolidated group pays and remits employment taxes and files its own separate employment tax returns and claims for refund. . Under both RRTA and FICA, the employment tax is composed of an \"employer” tax and an “employee” tax. As the withholding agent, the employer withholds and remits the employee tax and as the employer, pays the employer tax. . Plaintiffs attempted to notify all present and former employees in writing of their right either to claim a refund of their employment taxes or to authorize plaintiffs to file refund claims on their behalf. The administrative refund claims that plaintiffs ultimately filed included claims by those employees (past and present) who had given their consent to be included in the claims, and former employees who could not be located after reasonable effort. - Because of this essential identity between wages and^ compensation, references to wages” in this opinion shall also be understood to include “compensation” unless otherwise indicated. . During oral argument, defendant’s counsel referred the court to several FICA-tax cases in which the courts drew upon legislative history to bolster their conclusion regarding the intended scope of a provision that retroactively amended the effective dates of certain FICA-tax law changes, including the “decoupling provision\" quoted above (the Rowan override provision). See, e.g., Canisius College v. United States, 799 F.2d 18 (2d Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987); Temple Univ. v. United States, 769 F.2d 126 (3d Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986). We do not think these cases are helpful to defendant’s position. Without getting into specifics, it is enough to note that in the cited cases, the courts enlisted the aid" }, { "docid": "1155186", "title": "", "text": "is distributed as long as the contributions did not exceed the designated allowance. I.R.C. § 403(b). Similarly, “the amount of any payment (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment) made to, or on behalf of, an employee ... on account of ... retirement” shall be excluded from FICA taxes. I.R.C. § 3121(a)(2). Despite the similarity of the wording of these provisions, in Revenue Ruling 65-208 the Treasury took the position that, although employers did not have to withhold income taxes from contributions to salary reduction annuity plans under section 403(b), they did have to withhold and pay FICA taxes on those amounts under section 3121(a)(2). Rev.Rul. 65-208, 1965-2 C.B. 383. We agree with the Second Circuit’s conclusion that this position was “in conflict not only with the plain language of the exclusion from FICA wages for the amount ‘paid by an employer’ but also with the interpretation accorded to the similar statutory language in section 403(b).” Canisius College v. United States, 799 F.2d at 23. When interpreting legislation, “a statute’s plain language is the primary indicator of its meaning.” Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir. 1976), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). Section 3121(a) did not distinguish between salary reductions and salary supplements. The exclusion applied to “any amount paid by an employer” under an annuity retirement plan. I.R.C. § 3121(a)(2). Moreover, the House Report said that payments were to be excluded “even though the amount or possibility of such payments is taken into consideration in fixing the amount of remuneration.” H.R.Rep. No. 728, 76th Cong., 1st Sess., reprinted in 1939-2 C.B. 538, 548. It seems clear that Congress intended to exclude salary reduction plans as well as salary supplement plans. See Canisius College v. United States, 799 F.2d at 22-23. The Treasury’s interpretation of similar statutes in different ways so as to exclude contributions to salary reduction plans from income tax withholding but not from FICA taxes is also contrary" }, { "docid": "738727", "title": "", "text": "Amendments, Congress codified Revenue Ruling 65-208 by changing the definition of wages subject to FICA tax to include retirement plans and contributions funded through salary reduction agreements in the FICA wage base. Pub.L. No. 98-21, 97 Stat. 65, Section 324(a)(2), adding 26 U.S.C. § 3121(a)(5)(E), now 26 U.S.C. 3121(a)(5)(D). Section 328(b)(1) of the Amendments allowed the Internal Revenue Service to interpret wages for FICA purposes differently from wages for income tax purposes, thus subjecting any contributions paid after March 4, 1983 to FICA taxation. In enacting the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, Congress further limited Rowan “by stating that the case could not apply retroactively to any payments of FICA taxes made pursuant to Rev.Rul. 65-208.” University Health Center, Inc. v. United States, 622 F.Supp. 88, 89 (D.Vt.1985). The Government distinguishes Rowan from the situation in this case in that its position — that contributions made to an annuity plan under salary reduction agreements are subject to FICA tax — is the result of established congressional policies against permitting individuals to elect out of the social security system by diverting a portion of their pay to retirement plans. See Rev.Rul. 65-208, supra at 385. See also, 26 C.F.R. Section 31.3401(a)(12)-l(d) (Payments to individual retirement accounts qualify for exclusion from income tax withholding; no similar provision excludes such payments from the taxable wage base for FICA and FUTA purposes.) While Congress did choose to defer contributions to annuities from present income taxation (although subjecting them to income taxation when the annuities were distributed), it did not intend to grant such voluntary reductions a permanent exemption from FICA taxes. This Court, therefore, will not extend the Supreme Court’s decision in Rowan to exempt voluntary salary reductions permanently from FICA tax when such reductions are only temporarily excluded from income taxation. As its basis for denying the plaintiff’s refund request, this Court adopts the persuasive reasoning of Temple University v. United States, 769 F.2d 126 (3rd Cir.1985) which was followed by University Health Center, Inc. v. United States, supra, and Xavier University v. United States, 633 F.Supp." }, { "docid": "2071494", "title": "", "text": "(2) added a new subsection that excluded from FICA wages any employer payment under or to an annuity contract described in section 403(b), other than a payment for the purchase of such contract which is made by reason of a salary reduction agreement____ 26 U.S.C. § 3121(a)(5)(D) (Supp. II 1984) (formerly codified at 26 U.S.C. § 3121(a)(5)(E) (Supp. I 1983)) (emphasis added). Additionally, Congress in 1983 overturned the general premise of Rowan by enacting provisions that “decoupled” the interpretations of FICA and FUTA wages from the interpretation of wages for income-tax purposes. The FICA “decoupling” clause applied to remuneration paid after December 31, 1983, and provided: Nothing in the regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from “wages” as used in such chapter shall be construed to require a similar exclusion from “wages” in the regulations prescribed for purposes of this [FICA] chapter. 26 U.S.C. § 3121(a) (Supp. I 1983). This “decoupling” provision was enacted because of the congressional view that the objectives of the social security system differ from those of the income-tax withholding system, and that the Treasury Department should therefore be permitted to treat those systems differently. See S.Rep. No. 23, 98th Cong., 1st Sess. 42, reprinted in 1983 U.S.Code Cong. & Ad.News 143, 183. In 1984, in the Deficit Reduction Act of that year, Congress altered the date on which the FICA “decoupling” provision of the 1983 Act was to become effective: The amendments made by subsection (b) ... [the FICA “decoupling” provision] shall apply to remuneration ... paid after March 4, 1983, and to any such remuneration paid on or before such date which the employer treated as wages when paid. Pub.L. No. 98-369, § 2662(g), 98 Stat. 494, 1160 (emphasis added). Against this background, the district court determined that 65-208 was invalid as of 1980 because it conflicted with the specific statutory exclusion from FICA wages of amounts “paid by an employer” for retirement annuities. Canisius College v. United States, No. 84-1126, slip op. at 5 (W.D.N.Y. Mar. 10, 1968). The court concluded, however, that" }, { "docid": "17734128", "title": "", "text": "that the Supreme Court, in addressing this issue, concluded that the law required the term “wages” under FICA to be interpreted in a manner consistent with the term “wages” under § 3401(a) since the two definitions are essentially identical. Rowan Cos. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981). Defendant goes on to point out, however, that the Rowan decision has been superseded by legislative amendment. We begin, then, as does defendant, with the Supreme Court’s holding in Rowan. At issue in Rowan was the question of whether the IRS was acting in accordance with law in treating the value of employer-provided meals and lodging as wages for the purpose of imposing FICA tax, while simultaneously failing to treat that value as wages for the purpose of income-tax withholding. Based on an examination of the statutory language and the legislative histories of FICA, FUTA (the Federal Unemployment Tax Act), and the income-tax withholding provisions, the Court concluded that Congress intended a consistent definition of the term “wages.” The IRS’s regulations, the Court further concluded, failed “to implement the statutory definition of “wages’ in a consistent or reasonable manner” and were therefore held to be invalid. Id. at 263, 101 S.Ct. 2288. As indicated, defendant maintains that Rowan is no longer controlling law. In support of this point, defendant refers us to the legislative history of the Social Security Amendments of 1983, Pub.L. No. 98-21, 97 Stat. 65 (1983), and in particular to the Senate Report that accompanied S.l, the bill that was subsequently enacted into law. S.Rep. No. 98-23, at 42 (1983), reprinted in 1983 U.S.C.C.A.N. 143, 183. That report deals, inter alia, with a proposed amendment to § 3121(a) of the Tax Code (since enacted into law) that added the following language: Nothing in the regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from “wages” as used in such chapter shall be construed to require a similar exclusion from “wages” in the regulations prescribed for purposes of this chapter. 26 U.S.C. § 3121(a) (last paragraph). In" }, { "docid": "1155187", "title": "", "text": "799 F.2d at 23. When interpreting legislation, “a statute’s plain language is the primary indicator of its meaning.” Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp., 545 F.2d 754, 756 (1st Cir. 1976), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977). Section 3121(a) did not distinguish between salary reductions and salary supplements. The exclusion applied to “any amount paid by an employer” under an annuity retirement plan. I.R.C. § 3121(a)(2). Moreover, the House Report said that payments were to be excluded “even though the amount or possibility of such payments is taken into consideration in fixing the amount of remuneration.” H.R.Rep. No. 728, 76th Cong., 1st Sess., reprinted in 1939-2 C.B. 538, 548. It seems clear that Congress intended to exclude salary reduction plans as well as salary supplement plans. See Canisius College v. United States, 799 F.2d at 22-23. The Treasury’s interpretation of similar statutes in different ways so as to exclude contributions to salary reduction plans from income tax withholding but not from FICA taxes is also contrary to Rowan Cos., Inc. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981). In Rowan, the Supreme Court invalidated Treasury regulations that required the value of meals and lodging provided by employers to their employees to be included for FICA and Federal Unemployment Tax Act (FUTA) purposes, but not for income tax withholding purposes. Id. at 249-50, 101 S.Ct. at 2290-91. The Court found no indication in the legislative history that Congress intended substantially identical definitions of taxable “wages” to have different meanings. Id. at 255-62, 101 S.Ct. at 2293-97. It held “that Congress intended its definition to be interpreted in the same manner for FICA and FUTA as for income-tax withholding.” Id. at 263, 101 S.Ct. at 2297. The Treasury’s position in Revenue Ruling 65-208, therefore, was only justified if there was a sound basis for concluding that Congress meant something different by very similar provisions. The only basis for the distinction set forth in Revenue Ruling 65-208 was the conclusion that the gross income and FICA exclusions had “substantially" }, { "docid": "2071495", "title": "", "text": "security system differ from those of the income-tax withholding system, and that the Treasury Department should therefore be permitted to treat those systems differently. See S.Rep. No. 23, 98th Cong., 1st Sess. 42, reprinted in 1983 U.S.Code Cong. & Ad.News 143, 183. In 1984, in the Deficit Reduction Act of that year, Congress altered the date on which the FICA “decoupling” provision of the 1983 Act was to become effective: The amendments made by subsection (b) ... [the FICA “decoupling” provision] shall apply to remuneration ... paid after March 4, 1983, and to any such remuneration paid on or before such date which the employer treated as wages when paid. Pub.L. No. 98-369, § 2662(g), 98 Stat. 494, 1160 (emphasis added). Against this background, the district court determined that 65-208 was invalid as of 1980 because it conflicted with the specific statutory exclusion from FICA wages of amounts “paid by an employer” for retirement annuities. Canisius College v. United States, No. 84-1126, slip op. at 5 (W.D.N.Y. Mar. 10, 1968). The court concluded, however, that 65-208 had been retroactively codified by the 1984 provision of the Deficit Reduction Act. Id. at 6-7. It therefore granted summary judgment for the government. This appeal by Canisi-us followed. III. Validity of 65-208 We agree with the district court that 65-208 was invalid as of 1980 as contrary to the statutory exclusion from FICA wages. We conclude also that even were the ruling not invalid on that ground, it was contrary to the Rowan requirement that “wages” be similarly interpreted for FICA and income-tax withholding purposes. A. Validity under Statutory Exclusion We think it is clear that the payments made by Canisius under its salary reduction plan fall within the plain language of the exclusion from FICA wages, in effect during the tax year in issue, of amounts “paid by an employer for ... annuities ... under a plan ... on account of ... retirement.” 26 U.S.C. § 3121(a)(2) (emphasis added). The amounts were not paid out of employee salaries. To the contrary, the employees had agreed to be paid less salary in the" }, { "docid": "4236937", "title": "", "text": "on the one hand and federal income tax on the other. The plaintiff presents several grounds, independent of Rowan, for challenging the rule established in Rev.Rul. 65-208. For example, the plaintiff relies on Treas.Reg. § 31.3121(a)(2)-l(d) which provides: It is immaterial for purposes of this exclusion [from FICA tax of contributions made by an employer on behalf of an employee pursuant to a retirement plan] whether the amount or possibility of such benefit payments is taken into consideration in fixing the amount of an employee’s remuneration or whether such payments are required, expressly or impliedly, by the contract of service. The Government counters by arguing that this regulation reflects not an explicit salary reduction agreement, but rather, the treatment of employee retirement benefits in a collective bargaining agreement. Benefits paid by employers under collective bargaining agreements are not treated as paid under salary reduction agreements within the meaning of Rev.Rul. 65-208. Hence, they are not regarded as part of the taxable wage base of the employees for FICA purposes. The plaintiff also relies on Rev.Rul. 181, 1953-2 C.B. 111. This revenue ruling, however, was specifically distinguished in Rev.Rul. 65-208 on the ground that the employer made the contribution involved from its own funds and not under a salary reduction plan. Even if the foregoing analysis were rejected, and section 3121(a) is seen as applicable to salary reductions, the result is the same. This is due to the amendments found in the 1983 Act — amendments that, in the event the plaintiff’s position regarding section 3121(a) has merit, should be seen as having retroactive application. The 1983 Act contained numerous provisions concerning FICA coverage and taxation. Some of the amendments were enacted in reaction to the Supreme Court’s Rowan decision. Congress, in section 327(b)(1) of the 1983 Act, Pub.L. No. 98-21, § 327(b)(1), 97 Stat. 65, 127, sought to extricate the Treasury from the requirement that the definition of “wages” or FICA purposes be interpreted in the same manner as the definition of “wages” for income tax withholding purposes. The “decoupling” provision of the 1983 Act reads as follows: Nothing in" }, { "docid": "1155188", "title": "", "text": "to Rowan Cos., Inc. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981). In Rowan, the Supreme Court invalidated Treasury regulations that required the value of meals and lodging provided by employers to their employees to be included for FICA and Federal Unemployment Tax Act (FUTA) purposes, but not for income tax withholding purposes. Id. at 249-50, 101 S.Ct. at 2290-91. The Court found no indication in the legislative history that Congress intended substantially identical definitions of taxable “wages” to have different meanings. Id. at 255-62, 101 S.Ct. at 2293-97. It held “that Congress intended its definition to be interpreted in the same manner for FICA and FUTA as for income-tax withholding.” Id. at 263, 101 S.Ct. at 2297. The Treasury’s position in Revenue Ruling 65-208, therefore, was only justified if there was a sound basis for concluding that Congress meant something different by very similar provisions. The only basis for the distinction set forth in Revenue Ruling 65-208 was the conclusion that the gross income and FICA exclusions had “substantially different” purposes. But there is no indication that Congress had such different purposes in mind for the exclusions when it enacted the statutes. The Third Circuit concluded that in the absence of an explicit exclusion, the Treasury’s position was justified because of “the long-standing congressional intent to restrict the forms of compensation excluded from the FICA wage base.” Temple Univ. v. United States, 769 F.2d at 130. The court was persuaded by a Senate Report accompanying the 1983 amendments that said: The social security program aims to replace the income of beneficiaries when that income is reduced on account of retirement and disability. Thus, the amount of “wages” is the measure used both to define income which should be replaced and to compute FICA tax liability. Since the security system has objectives which are significantly different from the objective underlying the income tax withholding rules, the committee believes that amounts exempt from income tax withholding should not be exempt from FICA unless Congress provides an explicit FICA tax exclusion. S.Rep. No. 23, 98th Cong., 1st" }, { "docid": "4236938", "title": "", "text": "181, 1953-2 C.B. 111. This revenue ruling, however, was specifically distinguished in Rev.Rul. 65-208 on the ground that the employer made the contribution involved from its own funds and not under a salary reduction plan. Even if the foregoing analysis were rejected, and section 3121(a) is seen as applicable to salary reductions, the result is the same. This is due to the amendments found in the 1983 Act — amendments that, in the event the plaintiff’s position regarding section 3121(a) has merit, should be seen as having retroactive application. The 1983 Act contained numerous provisions concerning FICA coverage and taxation. Some of the amendments were enacted in reaction to the Supreme Court’s Rowan decision. Congress, in section 327(b)(1) of the 1983 Act, Pub.L. No. 98-21, § 327(b)(1), 97 Stat. 65, 127, sought to extricate the Treasury from the requirement that the definition of “wages” or FICA purposes be interpreted in the same manner as the definition of “wages” for income tax withholding purposes. The “decoupling” provision of the 1983 Act reads as follows: Nothing in the regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from “wages” as used in such chapter shall be construed to require a similar exclusion from “wages” in the regulations prescribed for purposes of this chapter. Section 327(b)(1) of the 1983 Act (codification is found following § 3121(a)(20) of the Code). The 1983 Act also amended the section 3121 definition of “wages” for FICA purposes in a number of very specific respects. First, Congress amended section 3121(a)(2) by striking “(A) retirement” plans from the list of exclusions under that provision. See section 324(a)(3)(A) of the 1983 Act. Second, Congress also struck section 3121(a)(3), relating to the exclusion for non-plan retirement arrangements. See id. at section 324(a)(3)(B). Congress then added a new section, 3121(a)(5)(E), which provides that the FICA wage base excludes: any payment made to, or on behalf of, an employee or his beneficiary ... under or to an annuity contract described in section 403(b), other than a payment for the purchase of such contract which is made" }, { "docid": "2071492", "title": "", "text": "‘paid by an employer’ for an annuity contract” and hence were subject to FICA tax. In the view of the Service, since the purposes of the section 403(b) income exclusion and of the FICA wage exclusion were “substantially different,” the similar language in those statutes did not have to be similarly interpreted. In 1981, in Rowan Companies, Inc. v. United States, 452 U.S. 247,101 S.Ct. 2288, 68 L.Ed.2d 814 (1981), the Supreme Court concluded that the language and legislative history of the relevant Acts indicated that Congress intended that the FICA and FUTA definitions of wages be interpreted in the same manner as the income-tax withholding definition of wages. Id. at 263,101 S.Ct. at 2297. Consequently, the Court found invalid a Treasury regulation that required inclusion of the value of certain tax-exempt meals and lodging in FICA and FUTA wages although the same value was not included in wages for income-tax withholding purposes. The premise of Rowan — that the Treasury Department must similarly interpret the similar definitions of wages — cast doubt on the validity of 65-208, because that ruling required inclusion of amounts paid by employers for annuity contracts under salary reduction plans in FICA wages even though such amounts were not included in wages for income-tax withholding purposes. In 1983, Congress partially codified the Rowan decision by amending the Social Security Act to provide that the value of the meals and lodging at issue in Rowan were not includable in FICA and FUTA wages. 26 U.S.C. § 3121(a)(19) (Supp. I 1983); id. § 3306(b)(14). However, Congress acted to preclude the possible impact of Rowan on 65-208 by amending the definitions of FICA and FUTA wages. See 5. Rep. No. 23, 98th Cong., 1st Sess. 41, reprinted in 1983 U.S.Code Cong. & Ad. News 143, 182 (amendments are intended to codify 65-208). Among other things, these amendments — which became effective December 31, 1983 — (1) deleted the statutory exclusion from FICA wages for amounts paid by employers for retirement plans, Social Security Amendments of 1983, Pub.L. No. 98-21, § 324(a)(3)(A), 97 Stat. 65, 123 (“1983 Act”), and" }, { "docid": "17734160", "title": "", "text": "given their consent to be included in the claims, and former employees who could not be located after reasonable effort. - Because of this essential identity between wages and^ compensation, references to wages” in this opinion shall also be understood to include “compensation” unless otherwise indicated. . During oral argument, defendant’s counsel referred the court to several FICA-tax cases in which the courts drew upon legislative history to bolster their conclusion regarding the intended scope of a provision that retroactively amended the effective dates of certain FICA-tax law changes, including the “decoupling provision\" quoted above (the Rowan override provision). See, e.g., Canisius College v. United States, 799 F.2d 18 (2d Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987); Temple Univ. v. United States, 769 F.2d 126 (3d Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986). We do not think these cases are helpful to defendant’s position. Without getting into specifics, it is enough to note that in the cited cases, the courts enlisted the aid of legislative history to reinforce their interpretation of the words of a statute. Here, by contrast, defendant would have us engage legislative history to stand in place of the words of a statute. Specifically, defendant would have the court draw upon the legislative history of the \"decoupling provision” to establish a distinction between wages for FICA purposes and wages for income-tax purposes despite the absence of any law, expressed either in statute or regulation, creating such a distinction. The short answer to this contention is that courts are authorized to interpret the law, not rewrite the law. . § 3402(o) provides: Extension of withholding to certain payments other than wages.— (1) General rule. — For purposes of this chapter (and so much of subtitle F as relates to this chapter)— (A) any supplemental unemployment compensation benefit paid to an individual, (B) any payment of an annuity to an individual, if at the time the payment is made a request that such annuity be subject to withholding under this chapter is in effect, and (C) any" }, { "docid": "17734132", "title": "", "text": "record as saying that the income-tax withholding system and the FICA-tax withholding system each serves a different interest which may, in turn, dictate differences in the make-up of their respective wage bases. But, as plaintiffs correctly point out, the statute that Congress enacted to facilitate such differentiation is not self-executing — its operation depends on the promulgation of regulations that in fact establish distinctions between wages for income-tax withholding purposes and wages for FICA-tax withholding purposes. Absent such regulations, this court has no basis for distinguishing between the content of the term “wages” for income-tax withholding purposes and the content of that term for FICA-tax withholding purposes. Simply put, the holding of Rowan remains in place. This same conclusion was expressed by the Federal Circuit in Anderson v. United States, 929 F.2d 648 (Fed.Cir.1991). In that case, the question was whether payments provided to civilian teachers employed by the Department of Defense in reimbursement of their overseas lodging costs constituted wages for FICA purposes. The court determined that the payments were specifically excluded from income and, hence, were not wages. In reaching this conclusion, the court was required to address the government’s contention that the addition of the parenthetical phrase “(including benefits)” to the statutory definition of FICA wages by the Deficit Reduction Act of 1984, Pub.L. No. 98-869, § 531, 98 Stat. 884 (1984), made the payments in question subject to FICA taxes. The argument was rejected: “We see no basis for giving the amendment ‘(including benefits)’ greater force in FICA than it has in connection with income taxes.” 929 F.2d at 653. The court then added this important footnote: Indeed, in light of the Supreme Court’s decision in Rowan Cos., and the legislative response to Rowan Cos. in the [Social Security Amendments (SSA) ] of 1983, we are constrained to interpret the “(including benefits)” language added by the [Deficit Reduction Act] in the same manner in both statutes. The SSA amendment provided for treating “wages” in both statutes differently, but only through exclusions promulgated by regulation. See 26 U.S.C. § 3121(a) (1982 & Supp. II 1984) (last paragraph)." }, { "docid": "2071515", "title": "", "text": "106 S.Ct. 2914, 91 L.Ed.2d 544 (1986). The court in Temple concluded that 65-208 was a correct interpretation of the statutory exclusion from FICA wages, which, in the court’s view, did not encompass employer payments made under salary reduction plans. Our ultimate determination in this case is, however, in harmony with the decision in Temple. . It is to be noted that statutory interpretation as reflected in a revenue ruling does not have the force of law and is of little aid in interpreting a tax statute. See Dixon v. United States, 381 U.S. 68, 73, 85 S.Ct. 1301, 1304, 14 L.Ed.2d 223 (1965); Biddle v. Commissioner, 302 U.S. 573, 582, 58 S.Ct. 379, 383, 82 L.Ed. 431 (1938); Temple University v. United States, supra, 769 F.2d at 137 (Weis, J., dissenting). . As we have previously indicated, the rationale given in 65-208 itself for this discrepancy in the interpretation of the similar terminology in section 403(b) and in the FICA wage exclusion was that the \"purposes of section 403(b) ... and [of the FICA wage exclusion] are substantially different,” and that therefore the fact that an amount was considered to be \"contributed by the employer” for purposes of section 403(b) did not require a similar determination that it was an amount \"paid by an employer\" for purposes of the FICA wage exclusion. This rationale closely resembles that found invalid in Rowan and so is clearly inadequate to sustain a conclusion that, as of 1980, 65-208 constituted a proper interpretation of original legislative intent regarding the specific statutory exclusion from FICA wages for amounts \"paid by an employer\" for annuities. . The legislative history of the provision indicates that Congress intended to address both Treasury Department regulations and revenue rulings. See S.Rep. No. 23, 98th Cong., 1st Sess. 42, reprinted in 1983 U.S.Code Cong. & Ad.News 143, 183 (determination of whether amounts are to be included in social security wage base is to be made without regard to whether the amounts are treated as wages for income-tax withholding). Consequently, references hereafter to \"regulations” also refer to revenue rulings. . Canisius’" }, { "docid": "9851931", "title": "", "text": "1933. Id. at 150-51, 59 S.Ct. at 127. Retroactively applying tax statutes was a valid way to fulfill the legislative goal of apportioning the cost of government. See id. at 146-47, 59 S.Ct. at 125. In the circumstances, retroactive application was not so harsh and oppressive that it violated due process. Id. at 147, 59 S.Ct. at 126. We think the “harsh and oppressive” test of Welch v. Henry does not limit retroactivity to one year, but instead requires a case-by-case analysis in which the length of the period affected is but one factor to be considered. See Canisius College v. United States, 799 F.2d 18, 27 (2d Cir.1986), cert. denied, 481 U.S. 1014, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987). Where legislation is curative, retroactive application may be constitutional despite a long period of retroactivity. See id. In Canisi-us College v. United States, the Second Circuit sustained the retroactive application, to a period of approximately four years prior to enactment, of a tax statute defining wages identically for FICA withholding and federal income tax withholding. The court found that the length of the period affected did not make retroactive application unduly harsh and oppressive because the legislation was curative. Id. at 26. See also Temple University v. United States, 769 F.2d 126, 134-35 (3d Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2914, 91 L.Ed.2d 544 (1986) (same provision); Fife v. Commissioner, 82 T.C. 1 (1984) (new statutory provision, clarifying that investments in motion pictures qualified for an investment tax credit only if the motion pictures were new, was not unconstitutionally applied to an investment made three years before enactment of the provision, where Congress’s intention in enacting the new provision was to clarify existing law, not to change the law). Contrary to the Taxpayers’ contentions, the effective date of TEFRA was an appropriate effective date for the curative amendment to section 55(f)(2), because TEFRA was the statute that established the particular alternative minimum tax provisions in effect when the 1984 amendment was enacted. The application of the amendment retroactive to that particular date is justified by a rational" }, { "docid": "738726", "title": "", "text": "but are to be considered “wages” for FICA purposes, Revenue Ruling 65-208, 1965-2 C.B. 383, is contrary to the definition of wages in Section 3121 of the Code and clear Congressional intent dating back to 1939. The plaintiff relies on the case of Rowan Companies, Inc. v. United States, 452 U.S. 247, 263, 101 S.Ct. 2288, 2297, 68 L.Ed.2d 814 (1981), for the proposition that Congress intended that “wages” be defined in the same manner for FICA and Federal Unemployment Tax Act (“FUTA”) purposes as for federal income tax withholding purposes. In that case, the employer had provided meals and lodging for its own convenience to employees working on offshore oil rigs. Based upon treasury regulations, the value of the meals and lodging had been excluded from wages for income tax purposes but not for FICA and FUTA purposes. The Court, however, invalidated the regulations as contrary to Congressional intent. The case did not address, much less extend, the FICA exclusion to salary reduction amounts used to purchase annuity plans. In the 1983 Social Security Amendments, Congress codified Revenue Ruling 65-208 by changing the definition of wages subject to FICA tax to include retirement plans and contributions funded through salary reduction agreements in the FICA wage base. Pub.L. No. 98-21, 97 Stat. 65, Section 324(a)(2), adding 26 U.S.C. § 3121(a)(5)(E), now 26 U.S.C. 3121(a)(5)(D). Section 328(b)(1) of the Amendments allowed the Internal Revenue Service to interpret wages for FICA purposes differently from wages for income tax purposes, thus subjecting any contributions paid after March 4, 1983 to FICA taxation. In enacting the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, Congress further limited Rowan “by stating that the case could not apply retroactively to any payments of FICA taxes made pursuant to Rev.Rul. 65-208.” University Health Center, Inc. v. United States, 622 F.Supp. 88, 89 (D.Vt.1985). The Government distinguishes Rowan from the situation in this case in that its position — that contributions made to an annuity plan under salary reduction agreements are subject to FICA tax — is the result of established congressional policies against permitting" }, { "docid": "712131", "title": "", "text": "calculating federal income tax. Income tax is deferred until there is a distribution of gross income under the annuity. I.R.C. § 61(a)(9). No FICA tax applies at the time of distribution of the annuity, as I.R.C. § 3121 excludes annuities from the FICA definition of wages. Rev.Rul. 65-208, 1965-2 C.B. 383, stated that salary reduction amounts used to purchase annuities constituted wages subject to FICA taxes. UHC complied with this ruling during the years at issue. UHC bases its present position on Rowan v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981). In that case, the United States Supreme Court held that wages, for both FICA and income tax purposes, did not include amounts expended for meals and lodging furnished to an employee for the convenience of the employer. This case did not extend the FICA exclusion to salary reduction amounts contributed to annuity plans. Subsequently, Congress enacted legislation that codified Rev. Rul. 65-208. Social Security Amendments Act of 1983, Pub.L. No. 98-21, 97 Stat. 65. This law limited the application of Rowan to the particular facts of that case. The Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, further clarified Rowan by stating that the case could not apply retroactively to any payments of FICA taxes made pursuant to Rev.Rul. 65-208. These Congressional actions evidence a forthright federal policy to include in wages for FICA purposes any contributions to annuity plans made in lieu of salary payments. Otherwise, employees could, by contract, determine what portion of their remuneration would be subject to the payment of FICA taxes. The majority opinion in Temple University v. United States, 769 F.2d 126, (3d Cir.1985) supports this interpretation of the relevant statutes. This Court regards the opinion in Temple as controlling, and incorporates the reasoning of the Temple majority as part of this opinion. CONCLUSION There being no genuine issue regarding any material fact, and defendant being entitled to judgment as a matter of law, the motion of the United States for summary judgment is GRANTED and the motion of UHC for summary judgment is DENIED." }, { "docid": "2071493", "title": "", "text": "validity of 65-208, because that ruling required inclusion of amounts paid by employers for annuity contracts under salary reduction plans in FICA wages even though such amounts were not included in wages for income-tax withholding purposes. In 1983, Congress partially codified the Rowan decision by amending the Social Security Act to provide that the value of the meals and lodging at issue in Rowan were not includable in FICA and FUTA wages. 26 U.S.C. § 3121(a)(19) (Supp. I 1983); id. § 3306(b)(14). However, Congress acted to preclude the possible impact of Rowan on 65-208 by amending the definitions of FICA and FUTA wages. See 5. Rep. No. 23, 98th Cong., 1st Sess. 41, reprinted in 1983 U.S.Code Cong. & Ad. News 143, 182 (amendments are intended to codify 65-208). Among other things, these amendments — which became effective December 31, 1983 — (1) deleted the statutory exclusion from FICA wages for amounts paid by employers for retirement plans, Social Security Amendments of 1983, Pub.L. No. 98-21, § 324(a)(3)(A), 97 Stat. 65, 123 (“1983 Act”), and (2) added a new subsection that excluded from FICA wages any employer payment under or to an annuity contract described in section 403(b), other than a payment for the purchase of such contract which is made by reason of a salary reduction agreement____ 26 U.S.C. § 3121(a)(5)(D) (Supp. II 1984) (formerly codified at 26 U.S.C. § 3121(a)(5)(E) (Supp. I 1983)) (emphasis added). Additionally, Congress in 1983 overturned the general premise of Rowan by enacting provisions that “decoupled” the interpretations of FICA and FUTA wages from the interpretation of wages for income-tax purposes. The FICA “decoupling” clause applied to remuneration paid after December 31, 1983, and provided: Nothing in the regulations prescribed for purposes of chapter 24 (relating to income tax withholding) which provides an exclusion from “wages” as used in such chapter shall be construed to require a similar exclusion from “wages” in the regulations prescribed for purposes of this [FICA] chapter. 26 U.S.C. § 3121(a) (Supp. I 1983). This “decoupling” provision was enacted because of the congressional view that the objectives of the social" } ]

[ { "docid": "21882266", "title": "", "text": "in State ex rel. v. Howat, 109 Kan. 376, 417, explains the pervading theory of the Act: “ Heretofore the industrial relationship has been tacitly regarded as existing between two members — industrial manager, and industrial worker. They have joined wholeheartedly in excluding others. The legislature proceeded on the theory there is a third member of those industrial relationships which have to do with' production, preparation and distribution of the necessaries of life — the public. The legislature also proceeded on the theory the public is not a silent partner. When the dissensions of the other' two become flagrant, the third member may see to it the business does not stop.” On three occasions when the Act was before us we referred to it as undertaking to establish a system of “ com-. pulso.ry arbitration.” Howat v. Kansas, 258 U. S. 181, 184; Wolff Packing Company v. Court of Industrial Relations, 262 U. S. 522, 542; Dorchy v. Kansas, 264 U. S. 286, 288. The Supreme Court of the State in a recent opinion criticizes this use of the termarbitration.” State v. Howat, 116 Kan. 412, 415. We recognize that in its usual acceptation the term indicates á proceeding based entirely oh the consent of the parties. And we recognize also that this Act dispenses with their consent. Under it they have no voice in selecting the determining agency or in defining what that agency is to investigate and determine. And yet the determination is to bind them even to the point of preventing, them from agreeing on any change in the terms fixed therein, unless the agency approves. ■ To speak of a proceeding with such attributes merely as an arbitration might be subject to criticism, but we think its nature is fairly reflected when it is spoken of as a compulsory arbitration. Of course, our present concern is with the essence of the system rather than its name. In this connection it is well to observe that in the opinion last mentioned the state court recognizes that the system, while intended to be just between employer and employees," } ]

[ { "docid": "22912348", "title": "", "text": "the tax as would be due if the five-mills levy were applied to the shares. Plainly, the first ground cannot be maintained. Wh.ethér a pleading sets up a sufficient right of action or defense, grounded on the Constitution or a law of the United States, is necessarily a question of federal law; and where a case coming from a state court presents that question, this Court must determine for itself the sufficiency of the allegations displaying the right or defense, and is not concluded by the view taken of them by the state court. Mitchell v. Clark, 110 U. S. 633, 645; Boyd v. Thayer, 143 U. S. 135, 180; Covington and Lexington Turnpike Co. v. Sandford, 164 U. S. 578, 595; Carter v. Texas, 177 U. S. 442, 447. The principle is general, and is a necessary element of this Court’s power to review judgments of state courts in cases involving the application and enforcement of federal laws. Davis v. Wechsler, 263 U. S. 22, 24. The second ground is not better. The Supreme Court of the Staté treated the case as cognizable in equity and perceived no obstacle to a consideration of the merits as displayed in the petition. In this that court was proceeding within limits where the state laws and practice were controlling, and its action is not open to revision here. In cases coming from state courts this Court’s power and concern are specially , directed to rulings made or refused on federal questions. Murdock v. Memphis, 20 Wall. 590, 638; Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 444. With the objections just considered out of the way, it suffices to say this Court’s jurisdiction on the writ of error has full súpport in Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282. The motion to dismiss is accordingly overruled, and the petition for certiorari is denied. The. state courts holds that .the state law authorizes the taxation shown in the petition; and, as this ruling on a purely state question must be accepted here, , we turn to the" }, { "docid": "3632838", "title": "", "text": "already been construed as not including municipal ordinances. Unless the phrase “ statute of any State” as used in §§ 237(a) ,and 240(b) of the Judicial Code as amended, includes municipal ordinances, no case from any lower court' involving only the validity of a municipal ordinance can now be reviewed by this Court otherwise than upon certiorari. When it is borne in mind that the severe limitations upon the right of review by this Court imposed by the Act of 1925 were made solely because the increase of the Court’s business compelled, the reasons why Congress should have taken away the right to a review by writ of error to the highest court of a state in cases involving the validity of ordinances, while leaving unaffected the right in cases involving the validity of statutes, becomes clear. There are only 48 States. In. 1920 there were 924 municipalities in the United. States of more than 8,000 inhabitants. The validity of ordinances of even smaller municipalities had come to this Court for adjudication. The increasingly complex conditions of urban life have led, as this Court noted in Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386-387, to a corresponding increase in municipal police legislation. Recently, two classes of municipal ordinances, new in character — those relating to zoning and those relating to motor vehicles— had become the subject of many controversies. The constitutionality of these ordinances can rarely be determined simply by applying a general rule. ! The Court must consider the effect of the ordinance as applied. As the validity of the particular ordinance depends ordinarily upon special facts, these must be examined whenever there is jurisdiction. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282. Though no burdensome factual inquiry is involved, the controversy may often be of trifling significance, as in the case at bar. Thus, persuasive reasons existed why Congress should have denied, in 1925, review by writ of error in cases which involved only the validity of a municipal ordinance. If, by striking out from § 237 of the Judicial Code the clause" }, { "docid": "23079899", "title": "", "text": "is a denial of the liberty guaranteed by the Fourteenth Amendment. Because this claim was denied the case is here under § 237 of the Judicial Code as amended. ■ This is the second writ of error. When .the case was first presented, it appeared that after entry of the judgment below certain provisions of the Act had been held invalid by this Court in Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522. The question suggested itself whether § 19 had not necessarily fallen, as a part of the system of so-called compulsory arbitration, so that there might be no occasion to con-sider the constitutional objection made specifically to it. That question, being one of statutory interpretation which had not been passed upon by the state court, the case was reversed without costs, and remanded for* further proceedings not inconsistent with the opinion of this Court. Dorchy v. Kansas, 264 U. S. 286. Thereupon, the Supreme Court of Kansas decided that § 19 is so far severable from the general scheme of legislation held invalid that it may stand alone with the legal effect of an independent statute; and it reaffirmed the judgment of the trial court. Kansas v. Howat, 116 Kan. 412. By the construction thus given to the statute we are bound. The only question open upon this second writ of error is whether the statute as so construed and applied is constitutional. The state court did not, in either of its opinions, mention the specific objection to the validity of § 19 now urged. In the second, it discussed only the question of statutory construction. In the first, it stated merely that the case is controlled by State v. Howat, 109 Kan. 376; Court of Industrial Relations v. Charles Wolff Packing Co., 109 Kan. 629, and State v. Howat, 109 Kan. 779. In these cases, which came to this Court for review in Howat v. Kansas, 258 U. S. 181 and Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522; 267 U. S. 552, there was no occasion" }, { "docid": "11107944", "title": "", "text": "177 S. W. 1193, the whole matter was again considered, and Simmons v. Lightfoot was expressly approved. But it is said that all of these considerations must yield to the opinion and decree of the United States Supreme Court declaring that these districts are existing in violation of the Constitution of the United States, and therefore without power to be districts, to issue bonds, or levy taxes in support thereof. That it did not deliver any sueh opinion, or make any such order, but that it merely held the plaintiffs there entitled to. their injunction, a simple reading of the opinion will abundantly show. That the Supreme Court of the United States could not have delivered any such opinion or made any such order in Browning v. Hooper, as the plaintiffs claim that it did, a consideration of the effect upon legislation of the Fourteenth Amendment as reflected in the decisions of the Supreme Court of the United States will show. These decisions establish: (1) That the Supreme Court does not act at all upon a statute or undertake by any decree to affect it generally; that it merely declares the law applicable to •the case of a particular litigant. (2) That the inquiry under the Fourteenth Amendment does not and cannot embrace the general question of the validity of the statute, but it undertakes only to determine, and has only the effect of determining, whether the rights of the particular litigant are protected by the Fourteenth Amendment against the operation of that statute. In Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 289, 42 S. Ct. 106, 108 (66 L. Ed. 239) the court said: “A statute may be invalid as applied to one state of facts and valid as applied to another. * * * Besides, a litigant can be heard to question a statute’s validity only when and so far as it is being or about to be applied to his disadvantage.” See, also, Yazoo & Mississippi River v. Jackson, 226 U. S. 218, 33 S. Ct. 40, 57 L. Ed. 193; Jeffrey Mfg. Co. v. Blagg," }, { "docid": "22557095", "title": "", "text": "suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. The California Syndicalism Act recites in § 4: “ Inasmuch- as this act concerns and is necessary to the immediate preservation of the public peace and safety, for the reason that at the present time large numbers of persons are going from place to place in this state advocating, teaching and practicing criminal-syndicalism, this act shall take effect upon approval by the Governor.” This legislative declaration satisfies the requirement of the constitution of the State concerning emergency legislation. In re McDermott, 180 Cal. 783. But it does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. As a statute, even if not void on its face, may be challenged because invalid as applied, Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, the result of such an enquiry may depend upon the specific facts of the particular case. Whenever the fundamental rights of free speech and assembly are alleged to have been in vaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. The legislative declaration, like the fact that the statute was passed and was sustained by the highest court of the State, creates merely a rebuttable presumption that these conditions have been satisfied. Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil, might have been made the important issue in the ease. She might have required that the issue be determined either by the court or the jury.' She claimed below that the statute as" }, { "docid": "3632839", "title": "", "text": "conditions of urban life have led, as this Court noted in Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386-387, to a corresponding increase in municipal police legislation. Recently, two classes of municipal ordinances, new in character — those relating to zoning and those relating to motor vehicles— had become the subject of many controversies. The constitutionality of these ordinances can rarely be determined simply by applying a general rule. ! The Court must consider the effect of the ordinance as applied. As the validity of the particular ordinance depends ordinarily upon special facts, these must be examined whenever there is jurisdiction. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282. Though no burdensome factual inquiry is involved, the controversy may often be of trifling significance, as in the case at bar. Thus, persuasive reasons existed why Congress should have denied, in 1925, review by writ of error in cases which involved only the validity of a municipal ordinance. If, by striking out from § 237 of the Judicial Code the clause “ or an authority exercised under any State,” Congress did not exclude from review by writ of error cases involving the validity of municipal ordinances and commission orders, it wholly failed to accomplish what, .in view of the statements made to it in regard to the effect of the amendment, must be deemed to have been its purpose in so amending the section. That is, to relieve this Court, in many cases, of the burden of obligatory review. For, other than these, there had been considered by this Court, in the nine years between the effective dates of the Jurisdictional Acts of 1916 and 1925, and decided with opinions, not more than eight cases involving the validity of an authority exercised under a State or under the United States. On the other hand the forty cases in which judgments of state courts sustaining municipal ordinances or commission orders had been reviewed on writ of error, had entailed a burden out of all proportion to their number. The evidence introduced to establish the facts in cases" }, { "docid": "22767238", "title": "", "text": "from the rendition of said second notices, his property will be seized and sold by warrant of distress. . . . He is now subject, at any moment to have the defendant, as Collector of Internal Revenue, seize his property, real or personal, for the nonpayment of said fines and penalties and that he is wholly without adequate remedy at law to prevent such seizure of his property.” That §. 3244 Rev. Stats., has no application; § 35 of the Prohibition Act confers no such power as the Collector seeks to exercise; and he is undertaking to punish complainant by fine and penalty for an alleged criminal offense without hearing, information, indictment orvtrial by jury, contrary to the Federal Constitution. If the latter section has the meaning ascribed to it by the defendant, it is unconstitutional. The prayer is for an injunction restraining the defendant from proceeding to collect the sum demanded by warrant of seizure, distress or sale or otherwise, and requiring a cancellation of the so-called. “ tax bills.” Appellant maintains that the demand upon him was not for taxes, but for a penalty for an alleged criminal act; that the method adopted for enforcing this penalty is contrary to the Federal Constitution; and that if construed as appellee insists it should be, § 35 is unconstitutional. Appellee maintains that the cause involves only questions of construction and, therefore, the appeal should be dismissed; that § 3224, Rev. Stats., prohibits the relief prayed; that the bill states no ground for equitable relief; and that full, adequate and complete remedy may be had at law. The cause is properly here by direct appeal from the District Court. Appéllant claimed that as construed and sought to be enforced by the Collector, § 35 of the Prohibition Act conflicts with the Federal Constitution. The point is substantial and sufficient to support our jurisdiction. Towne v. Eisner, 245 U. S. 418, 425; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282; South Covington & Cincinnati Street Ry. Co. v. Newport ante, 97. The National Prohibition Act, c. 85, 41 Stat. 305, is" }, { "docid": "22202043", "title": "", "text": "effect, strikes and lockouts, the boycott and picketing, are made unlawful. Any person violating any provision of the statute, or any order of the so-called court, is declared guilty of a misdemeanor. Some of the provisions of the act were considered in Howat v. Kansas, 258 U. S. 181, and in Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522. Section 19 provides that any officer of a union of workmen engaged in an industry within the provisions of the act, who shall wilfully use the power incident to his official position to influence any other person to violate any provision of the statute or any valid order of the Court of Industrial Relations, shall be deemed guilty of a felony punishable by a fine not to exceed $5,000, or by imprisonment at hard labor, not to exceed two years, or by both such fine and imprisonment. Under this section an information was filed against Dorchy, a union official, for calling a strike in a coal mine. He was found guilty. The judgment entered was affirmed by the highest court of the State, 112 Kans. 235; and a rehearing was denied. The case is here on writ of error under § 237 of the Judicial Code as amended. It is contended that § 19 is void, because it prohibits strikes; and that to do so is denial of the liberty guaranteed by the Fourteenth Amendment. After the judgment under review was entered in the Supreme Court of Kansas, this Court declared, in the Wolff Packing Co. Case, supra, p. 544, that the system of compulsory arbitration as applied to packing plants, violates the Federal Constitution. For the reasons there set forth, it is unconstitutional, also, as applied to the coal mines of that State. The question suggests itself whether § 19 has not, therefore, necessarily fallen as a part of the system of compulsory arbitration. If so, there is no occasion to' consider the specific objection to the provisions of that section. This Court has power not only to correct errors in the judgment entered below," }, { "docid": "22384035", "title": "", "text": "be applied, Liverpool, N. Y. & P. S. S. Co. v. Emigration Comm’rs, supra, 39; White v. Johnson, 282 U. S. 367, 371; Allen-Bradley Local v. Board, 315 U. S. 740, 746-7, or to decide any constitutional question except with reference to the particular facts to which it is to be applied, Hall v. Geiger-Jones Co., 242 U. S. 539, 554; Corporation Comm’n v. Lowe, 281 U. S. 431, 438; Continental Baking Co. v. Woodring, 286 U. S. 352, 372; Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, 429-30. A law which is constitutional as applied in one manner may, it is true, violate the Constitution when applied in another. Field v. Clark, 143 U. S. 649, 69A-7; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 289; Concordia Ins. Co. v. Illinois, 292 U. S. 535; Associated Press v. Labor Board, 301 U. S. 103. But “Since all contingencies of attempted enforcement cannot be envisioned in advance of those applications” this Court has felt bound to delay passing on “the constitutionality of all the separate phases of a comprehensive statute until faced with cases involving particular provisions as specifically applied to persons who claim to be injured.” Watson v. Buck, 313 U. S. 387, 402. All these considerations forbid our deciding here the constitutionality of a state statute of doubtful construction in advance of its application and construction by the state courts and without reference to some precise set of facts to which it is to be applied. The declaratory judgment procedure may be resorted to only in the sound discretion of the Court and where the interests of justice will be advanced and an adequate and effective judgment may be rendered. Great Lakes Co. v. Huffman, supra; Coffman v. Breeze Corps., supra. Like objections are made and like questions raised with respect to § 16 which makes it unlawful for any “executive, administrative, professional, or supervisory employee to be a member in, or to be accepted for membership by, any labor organization” which admits to membership employees other than persons of these classes. The section does" }, { "docid": "22717278", "title": "", "text": "v. State, 367 S. W. 2d 864. But see the decision below in Spencer, 389 S. W. 2d 304, for the inapplicability of the stipulation rule in eapital eases. In the view we take of the constitutional issue before us we consider it immaterial whether or not that course was open to any of the petitioners. Subsequent to the present convictions Texas has passed a new law respecting the procedure governing recidivist cases, the effect of which seems to be that except in capital cases the jury is not given the recidivist issue until it has first found the defendant guilty under the principal charge. Texas Code Crim. Proc. Art. 36.01, effective January 1, 1966. Since these cases were all tried under the older procedure, the new statute is not before us. The question of whether Spencer is properly here as an appeal, a matter which we postponed to consideration of the merits, is a tangled one. See Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282; Hart & Wechsler, The Federal Courts and the Federal System 565-567 (1953). Rather than undertake to resolve it, we think it more profitable to dismiss this appeal, treat it as a petition for certiorari, 28 U. S. C. § 2103, and grant the petition, particularly as there is pending in the Court Spencer's timely filed alternative petition for certiorari, which has been held to await the outcome of this appeal. Accordingly we have in this opinion referred to Spencer as a “petitioner.” The Reed case, unlike the Spencer and Bell cases which come to us from the Court of Criminal Appeals of Texas, is here from a judgment of the United States Court of Appeals for the Fifth Circuit affirming the District Court’s dismissal of a writ of habeas corpus on the ground that the Texas recidivist procedure did not offend the United States Constitution. 343 F. 2d 723. The Third Circuit in United States v. Banmiller, 310 F. 2d 720, held a similar Pennsylvania procedure, when applied in capital cases, unconstitutional. The Fourth Circuit held a comparable Maryland recidivist practice unconstitutional in" }, { "docid": "23079900", "title": "", "text": "scheme of legislation held invalid that it may stand alone with the legal effect of an independent statute; and it reaffirmed the judgment of the trial court. Kansas v. Howat, 116 Kan. 412. By the construction thus given to the statute we are bound. The only question open upon this second writ of error is whether the statute as so construed and applied is constitutional. The state court did not, in either of its opinions, mention the specific objection to the validity of § 19 now urged. In the second, it discussed only the question of statutory construction. In the first, it stated merely that the case is controlled by State v. Howat, 109 Kan. 376; Court of Industrial Relations v. Charles Wolff Packing Co., 109 Kan. 629, and State v. Howat, 109 Kan. 779. In these cases, which came to this Court for review in Howat v. Kansas, 258 U. S. 181 and Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522; 267 U. S. 552, there was no occasion to consider the precise claim now urged — the invalidity of § 19 when treated as an independent statute.- Nor was this question referred to, in any way. But the claims made by Dorchy below properly raised it; and, as the judgment entered involves a denial of the claim, we must pass upon it. The question requiring decision is not, however, the broad one whether the legislature has power to prohibit strikes. It is whether the prohibition of § 19 is unconstitutional as here applied. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289. The special facts out of which the strike arose must, therefore, be considered. Some years prior to February 3, 1921, the George H. Mackie Fuel Company had operated a coal mine in Kansas. Its employees were members of District No. 14, United Míñe Workers of America. On that day, Howat, as president, and Dorchy, as vice-president of the union, purporting to act under direction of its executive board, called a strike. So far as appears, there was' no trade dispute." }, { "docid": "22542685", "title": "", "text": "3d, at 99-100, 81 Cal. Rptr., at 506. The California Supreme Court, declined review by á divided vote. We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. 399 U. S. 904. We now reverse. . The question of our jurisdiction need not detain us long. Throughout the proceedings below, .Cohen con sistently claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U. S. C. § 1257 (2) ; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 (1921). I In order to lay hands on the precise issue which this case' involves, it is useful first to canvass various matters which this record does not present. The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct”, which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech,” cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen- to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any r. ,„ssage and hence arguably could be regulated without effectively repressing Cohen’s ability to. express himself. Cf. United States v. O’Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to' punish Cohen for the underlying content of the message the inscription. conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on" }, { "docid": "22202044", "title": "", "text": "The judgment entered was affirmed by the highest court of the State, 112 Kans. 235; and a rehearing was denied. The case is here on writ of error under § 237 of the Judicial Code as amended. It is contended that § 19 is void, because it prohibits strikes; and that to do so is denial of the liberty guaranteed by the Fourteenth Amendment. After the judgment under review was entered in the Supreme Court of Kansas, this Court declared, in the Wolff Packing Co. Case, supra, p. 544, that the system of compulsory arbitration as applied to packing plants, violates the Federal Constitution. For the reasons there set forth, it is unconstitutional, also, as applied to the coal mines of that State. The question suggests itself whether § 19 has not, therefore, necessarily fallen as a part of the system of compulsory arbitration. If so, there is no occasion to' consider the specific objection to the provisions of that section. This Court has power not only to correct errors in the judgment entered below, but, in the exercise of its appellate jurisdiction, to make such disposition of the case as justice may now require. Gulf, Colorado & Santa Fe Ry. Co. v. Dennis, 224 U. S. 503, 506. In determining what justice requires the Court must consider changes in law and in fact which have súpervened since the judgment was entered below. Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 21. If § 19 falls as the result of the decision in the Wolff Packing Co. Case, the effect is the same as if the section had been repealed without any reservation. A statute bad in part is not necessarily void in its entirety. Provisions within the legislative power may stand if separable from the bad. Berea College v. Kentucky, 211 U. S. 45, 54-56; Carey v. South Dakota, 250 U. S. 118, 121. But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both that, standing alone, legal effect can be given to it and that the legislature intended the provision" }, { "docid": "22682226", "title": "", "text": "the Constitution, treaties or laws of the United States, and the decision is in favor of its validity.” It is sufficient that the validity of the state statute be challenged and sustained as applied to a particular set of facts. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U. S. 468, 473-474, n. 4 (1989); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 288-290 (1921). In practice, whether such an as-applied challenge comes within our appellate jurisdiction often turns on how that challenge is framed. See Hanson v. Denckla, 357 U. S. 235, 244 (1958); Memphis Natural Gas Co. v. Beeler, 315 U. S. 649, 650-651 (1942). In the present case appellants argued below “that the state lower court jurisdiction over these adoptions was preempted by plenary federal legislation.” Brief for Appellant in No. 57,659 (Miss. Sup. Ct.), p. 5. Whether this formulation “squarely” challenges the validity of the state adoption statute as applied, see Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434, 440-441 (1979), or merely asserts a federal right or immunity, 28 U. S. C. § 1257(3), is a difficult question to which the answer must inevitably be somewhat arbitrary. Since in the near future our appellate jurisdiction will extend only to rare cases, see Pub. L. 100-352,102 Stat. 662, it is also a question of little prospective importance. Rather than attempting to resolve this question, therefore, we think it advisable to assume that the appeal is improper and to consider by writ of certiorari the important question this case presents. See Spencer v. Texas, 385 U. S. 554, 557, n. 3 (1967). We therefore dismiss the appeal, treat the papers as a petition for writ of certiorari, 28 U. S. C. § 2103, and grant the petition. (For convenience, we will continue to refer to the parties as appellant and appellees.) “Reservation” is defined quite broadly for purposes of the ICWA. See 25 U. S. C. § 1903(10). There is no dispute that the Choctaw Reservation falls within that definition. Section 1911(a) does not apply “where" }, { "docid": "22088027", "title": "", "text": "expediency of the taking may be determined by such agency and in such mode as the State may designate. They are legislative questions, no matter who may be charged with their decision, and a hearing thereon is not essential to due process in the sense of the Fourteenth Amendment.” Bragg v. Weaver, 251 U. S. 57, 58. “ That the necessity and expediency of taking property‘for public use is a legislative and not a judicial question is not open to discussion. . . . Neither is it any longer open to question in this Court that the legislature may confer upon a municipality the authority to determine such necessity for itself. . . . The question is purely political, does not require a hearing, and is not the subject of judicial inquiry.” Joslin Mfg. Co. v. Providence, ante, 668. And, clearly, the fact that the resolutions are made conclusive evidence by the statute only when adopted by a two-thirds vote, and as applied to an improvement lying within the county, does not constitute an unjust or unreasonable classification. And since the resolutions were conclusive evidence as to the necessity for the taking of these public highways, the ranch owners were not prejudiced by the ruling of the trial judge which treated them as prima facie evidence merely and allowed them full opportunity to introduce their evidence upon the subject. A litigant can be heard to question the validity of a statute only when and in so far as it is applied to his disadvantage. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289. We therefore conclude that the property of the ranch owners has been taken for highways constituting a public use authorized by law, and upon a public necessity for the taking duly established, and that they have not been deprived of their property in violation of the Fourteenth Amendment. The judgments of the District Court of Appeal are accordingly Affirmed. Mr. Justice Sutherland took no part in the consideration or decision of this case. After these judgments of affirmance petitions to have the cases heard and determined" }, { "docid": "23079898", "title": "", "text": "Mr. Justice Brandeis delivered the'opinion of the Court. ■ Section 17 of the Court of Industrial Relations Act, Laws of Kansas, 1920, Special Session, c. 29,' while reserving to the individual employee the right to quit his employment at any time, makes it unlawful to conspire “to induce others'to quit their employment for the purpose and with the intent to hinder, delay, limit or suspend the operation of ” mining. Section 19 makes it a felony for an officer of a labor union wilfully to úse the power or influence incident to his office to induce another person to violate any provision of the Act. Dorchy was prosecuted criminally for violating § 19. .The jury found him guilty through inducing a violation of § 17; the trial court sentenced him to fine and imprisonment; and its judgment was affirmed by the Supreme Court of the State, Kansas v. Howat, 112 Kan. 235. Dorchy duly claimed in both state courts that § 19 as applied was void because it prohibits strikes; and that to do so is a denial of the liberty guaranteed by the Fourteenth Amendment. Because this claim was denied the case is here under § 237 of the Judicial Code as amended. ■ This is the second writ of error. When .the case was first presented, it appeared that after entry of the judgment below certain provisions of the Act had been held invalid by this Court in Charles Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522. The question suggested itself whether § 19 had not necessarily fallen, as a part of the system of so-called compulsory arbitration, so that there might be no occasion to con-sider the constitutional objection made specifically to it. That question, being one of statutory interpretation which had not been passed upon by the state court, the case was reversed without costs, and remanded for* further proceedings not inconsistent with the opinion of this Court. Dorchy v. Kansas, 264 U. S. 286. Thereupon, the Supreme Court of Kansas decided that § 19 is so far severable from the general" }, { "docid": "22912349", "title": "", "text": "Court of the Staté treated the case as cognizable in equity and perceived no obstacle to a consideration of the merits as displayed in the petition. In this that court was proceeding within limits where the state laws and practice were controlling, and its action is not open to revision here. In cases coming from state courts this Court’s power and concern are specially , directed to rulings made or refused on federal questions. Murdock v. Memphis, 20 Wall. 590, 638; Bi-Metallic Investment Co. v. State Board of Equalization, 239 U. S. 441, 444. With the objections just considered out of the way, it suffices to say this Court’s jurisdiction on the writ of error has full súpport in Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282. The motion to dismiss is accordingly overruled, and the petition for certiorari is denied. The. state courts holds that .the state law authorizes the taxation shown in the petition; and, as this ruling on a purely state question must be accepted here, , we turn to the question, chiefly pressed on our attention, whether the state law, so construed and applied, conflicts with the federal statute. - In approaching its solution there is need for having in mind the occasion for the federal statute and the purpose and words of the restriction therein which is said to have been violated here. National banks are not merely private moneyed institutions but agencies of the United States created under its laws to promote its fiscal policies; and hence the banks, their property and their shares cannot be taxed under state authority except as Congress consents and then only in conformity with the restrictions attached to its consent. Des Moines National Bank v. Fairweather, 263 U. S. 103, 106, and cases cited. The early legislation respecting these banks contained a restricted consent, which after-wards became § 5219 of the Revised Statutes. By it Congress assented to the taxation of the shares to thfeir owners, under the laws of the State where the bank was located, subject to the restriction that “ the taxation shall not" }, { "docid": "23079901", "title": "", "text": "to consider the precise claim now urged — the invalidity of § 19 when treated as an independent statute.- Nor was this question referred to, in any way. But the claims made by Dorchy below properly raised it; and, as the judgment entered involves a denial of the claim, we must pass upon it. The question requiring decision is not, however, the broad one whether the legislature has power to prohibit strikes. It is whether the prohibition of § 19 is unconstitutional as here applied. Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289. The special facts out of which the strike arose must, therefore, be considered. Some years prior to February 3, 1921, the George H. Mackie Fuel Company had operated a coal mine in Kansas. Its employees were members of District No. 14, United Míñe Workers of America. On that day, Howat, as president, and Dorchy, as vice-president of the union, purporting to act under direction of its executive board, called a strike. So far as appears, there was' no trade dispute. There had been no controversy between the company and the union over wages, hours or conditions of labor; over discipline or the discharge of an employee; concerning the observance of rules; or over the employment of non-union labor. Nor was the strike ’ordered as a sympathetic one in aid of others engaged in any such controversy. The order was made and the strike was called to compel the company to pay a claim of one Mishmash for $180. The men were told this; and they were instructed not to return to work until they should be duly advised that the claim had been paid. The strike order asserted that the claim had “been settled by the Joint Board of Miners and Operators but [that] the company refuses ... to pay Brother Mishmash any part of the money that is due him.” There was, however, no evidence that the claim had been submitted to' arbitration, nor of any contract requiring that it should be. The claim was disputed. It had been pending nearly two years. So" }, { "docid": "22861616", "title": "", "text": "purposes on lands within the state. It seems to us plain that the purpose of the act was to relieve the producer from liability for the tax pro tanto, and to pass on to the irrigation consumers the benefit thereof to the extent— and only to the extent — of the savings effected through the exemption. There is nothing to suggest that the legislature intended to cast any additional burden upon the producer or require him to yield to the irrigation consumers anything beyond the equivalent of the exemption. The irrigation of even private lands in the arid region is a matter of public concern (Clark v. Nash, 198 U. S. 361), and we are of opinion that an exemption of the character here involved is not precluded by the equal protection clause of the Fourteenth Amendment. Compare Louisville Gas Co. v. Coleman, 277 U. S. 32, 40. The provisions in respect of the allowance of credits to the consumers by the producer present a question of more difficulty. If these provisions embody nothing more than a method of accounting to make sure that the irrigation consumers shall not bear, in whole or in part, the burden of the tax from which the producer is exempt, they would seem to be without fault. If by construction or in application they result in taking from the producer more than the sum of the exemption, a different question would arise. The supreme court of Idaho thus far has not construed § 5 in respect of the provisions now under consideration. The point was presented but reserved in Williams v. Baldridge, supra, p. 631. It does not appear that appellant is presently in any such danger of an unconstitutional application of these provisions of the statute as to entitle it to invoke a decision here upon the question, and the rule is well settled that “ a litigant can be heard to question a statute’s validity only when and so far as it is being or is about to be applied to his disadvantage.” Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 289;" }, { "docid": "23079903", "title": "", "text": "far as appears, Mishmash was not in the company’s employ at the time of the strike order. The men went out in obedience to the strike order; and they did not return to work until after the claim was paid, pursuant to an order of the Court of Industrial Relations. While the men were out on strike this criminal proceeding was begun. Besides these facts, which appear by the bill of exceptions, the State presents for our consideration further facts which appear by the record in Howat v. Kansas, 109 Kan. 376; 258 U. S. 181, one of the cases referred to by the Supreme Court of'Kansas in. its first opinion in the case at bar. These show that Dorchy called this strike in violation of an injunction issued by the State court; and that the particular controversy with Mishmash arose in this way. Under the contract between the company and the union, the rate of pay.for employees under 19 was $3.65 a day and for those over 19 the rate was $5. Mishmash had been paid at the lower rate from August 31, 1917, to March 22, 1918, without protest. On that day he first demanded pay at the higher rate, and claimed back pay from August 31, 1917, af the higher rate. His contention was that he had been born August 31, 1898. The company paid him, currently, at the higher rate beginning April 1, 1918. It refused him the back pay, on the ground that he was in fact less than nineteen years old. One entry in the Mishmash family Bible gave August 31, 1898, as the date of his birth, another August 31,1899. Hence the dispute. These additional facts were not put in evidence in the case at bar. Howat v. Kansas, 109 Kan. 376, was a wholly independent proceeding. Mere reference to it by the court as a controlling decision did not incorporate its record into that of the case at bar. See Pacific R. R. Co. v. Missouri Pacific Ry. Co., 111 U. S. 505, 517-8. And it does not appear that the court" } ]

[ { "docid": "3562892", "title": "", "text": "Missick within the level 22 range, 41-51 months. However, Judge Tinder’s explanation for his departure from the Guidelines was predicated upon firearm possession by Whisner and Fluhr, the recipients of the fruits of Missick’s importation. Although Whisner and Fluhr were charged under 18 U.S.C. § 924(c) for the possession or use of a firearm during the commission of a drug-trafficking crime subjecting them to an additional five years of imprisonment, no evidence was presented that Missick possessed a firearm during the commission of the offense. Missick may still have been properly subject to an enhanced sentence based on the possession of firearms by Whisner and Fluhr without individually possessing a firearm under the theory of co-conspirator liability established in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489. In order to do so, Whisner, Fluhr and Missick must have been charged as co-conspirators in the conspiracy to import cocaine under Count One of Missick’s indictment, Whisner or Fluhr must have been found possessing a firearm in furtherance of the conspiracy, and Mis-sick must have been found to be a member of the conspiracy at the time of the firearm possession. United States v. Gironda, 758 F.2d 1201, 1211 (7th Cir.1985). However, Count One of Missick’s indictment charged only Settles and “diverse other persons known and unknown” in the conspiracy to import. In establishing the Sentencing Guidelines, the Commission sought to devise a “charge offense” system, where the defendant is sentenced on the basis of the conduct charged and convicted, rather than a “real offense” system where the defendant may be sentenced on the actual conduct independently of whether the conduct constituted elements of the charged offense. Sentencing Guidelines, Chap. One, Part A, § 4(a), at 1.5 (1987). However, the Guidelines retain some real offense attributes, including the specific offense characteristics which allow the district court to reduce or elevate the offense level based on individual characteristics of the defendant, such as possession of a dangerous weapon. Here the specific offense characteristic of possession of a firearm by Missick was not present to justify elevating the offense" } ]

[ { "docid": "314131", "title": "", "text": "containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses.” The commentary to § 1B1.2 explains: “For example, if the defendant is convicted of one count of robbery, but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.” commentary note 4. Compare United States v. Collar, 904 F.2d 441, 442-43 (8th Cir.1990) (applying lB1.2(c) and the commentary and concluding that stipulated offenses are to be treated as convictions in determining the offense level); see generally United States v. White, 888 F.2d 490 (7th Cir.1989) (indicating the substantial deference owed to the commentary’s explanations of the Sentencing Guidelines). Eske stipulated to the ten violations and agreed that they would be considered in determining an appropriate guideline range. Stipulated offenses are to be treated as offenses of conviction. Therefore, these violations were properly included in his offense level calculation. Eske has also challenged the use of the ten crimes in determining his criminal history category. Prior sentences are included within the criminal history calculation so long as those sentences were “imposed within ten years of the defendant’s commencement of the instant offense.” Sentencing Guidelines § 4A1.2(e)(2). The District Court included Eske’s 1978 burglary sentence in the criminal history calculation. The burglary sentence was imposed within ten years of the first stipulated offense but more than ten years before the firearms offense charged in the indictment. Eske claims the crime charged in the indictment is the “instant offense” to be used in applying the ten year cutoff. Once again, the commentary to the Sentencing Guidelines rejects Eske’s position. The instant offense “includes any relevant conduct.” § 4A1.2 commentary note 8. “Relevant conduct” as defined in § 1B1.3(a)(1) includes “all acts ... committed ... by the defendant ... during the commission of the offense of conviction.” The “offense of conviction,” as explained above and as mandated by § lB1.2(c), in- eludes the stipulated offenses in" }, { "docid": "23365984", "title": "", "text": "of the “same course of conduct or common scheme or plan” (though sometimes such acts could fall within some other part of the “relevant conduct” guideline, such as § lB1.3(a)(l), governing conduct that occurred during “preparation for,” “commission of” or a cover-up of, the offense of conviction), unless the government separately charges and obtains conviction for these acts. The reason the Commission has drawn this kind of line reflects the “compromise” between “real offense” and “charge offense” sentencing that we mentioned above, see pp. 909-10, supra. The placing of this “line” arises from (1) the Commission’s analysis of how courts tended to sentence in the past and (2) its weighing, in respect to different kinds of crimes and different ways of committing those crimes, of the considerations for, and against, real offense sentencing. (These matters are described more fully in the Guidelines Introduction, ch. 1, and in Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988). The Seventh Circuit has explained these matters clearly in White, supra.) One might argue about the wisdom of the line the Commission has drawn, but we cannot say that the Commission has not drawn it. Thus, we continue to follow our prior cases, and those of other circuits, that have held that the sentencing court, in determining the proper drug offense level, will take account of the drugs that “were part of the same course of conduct or common scheme or plan as the offense of conviction.” We decline to follow Restrepo. 3. Blanco claims that the district court ought to have given him a two level reduction for “acceptance of responsibility.” Guidelines § 3E1.1. He argues that he accepted responsibility by pleading guilty. The relevant guideline, however, while stating that the court should “reduce the offense level by 2 levels,” if “the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility,” also says that entry of a “guilty plea” does not “entitle[ ]” a defendant to a reduction “as a matter of right.” The sentencing court said it would not grant" }, { "docid": "22315139", "title": "", "text": "such offense characteristics. The use of “specific offense characteristics” reflects a crucial compromise at the heart of the Sentencing Guidelines. Recognizing that it faced a choice between “charge offense” sentencing, which would specify sentences based solely on the elements of the offense of conviction, and “real offense” sentencing, which would specify sentences based on the defendant’s actual conduct, the Commission opted for a “modified real offense system.” See id. Ch. 1, Pt. A § 4(a), at 1.5; United States v. Correa-Vargas, 860 F.2d 35, 38-39 (2d Cir.1988); Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988). Having chosen to assign precise values to some “specific offense characteristics,” the Commission then identified the categories of misconduct that the sentencing judge could examine in determining whether to make these adjustments to the base offense level, as well as in selecting the appropriate base offense level where more than one such level is provided for an offense. The Commission accomplished this task by formulating the “relevant conduct” guideline, U.S.S.G. § 1B1.3, i.e., the identification of conduct, as stated in the initial set of guidelines, that is “relevant to the offense of conviction.” U.S.S.G. § 1B1.3 (1987). Included as “relevant conduct” are acts of the defendant “that occurred during the commission of the offense of conviction” or “in preparation for that offense,” U.S.S.G. § 1B1.3(a)(1), and, “solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts,” {i.e., “aggregate harm” offenses such as those involving drugs or money), acts of the defendant “that were part of the same course of conduct or common scheme or plan as the offense of conviction,” id. § 1B1.3(a)(2). Second, the Commission specified that misconduct constituting offenses to which the defendant has stipulated in connection with the entry of a plea to the offense of conviction shall be treated as if the defendant had been convicted of additional counts charging such offenses. Id. § lB1.2(c). That requirement triggers the application of the multi-count analysis set forth in sections 3D1.1-.5. Under these provisions," }, { "docid": "314136", "title": "", "text": "introduction 4(a), at 1.4-1.5 (Nov. 1990). The Commission recognized that its approach potentially afforded prosecutors discretion to affect the length of a sentence by adding counts to an indictment. U.S. S.G., ch. 1, pt. A, introduction 4(a), at 1.5 (Nov. 1990). Eske’s case presents a considerably more problematic opening for prose-cutorial expedients. True, Eske admitted that he committed the uncharged offenses. He “pleaded guilty” to them in an informal way. But it may not be clear that he understood the full consequences of his action. A stipulation of this sort to offenses more serious than the crimes charged (and pleaded to) may have a potential for misleading a defendant with respect to the consequences of a guilty plea. Defendant Eske no doubt believed that there was a quid pro quo in the plea bargain. The plea agreement provided that, “The government-agrees not to charge but the court will consider for determining the appropriate sentencing guideline range the following [Social Security number violations].” Plea Agreement at 5, reproduced in Appellant’s Br. at 14. Eske may not have been fully aware that the stipulated, uncharged offenses carried a base offense level greater than the charged offenses. There is room for doubt that a defendant could fully comprehend this unusual state of affairs before receipt of the Presentence Report. Hope for comprehension of this bizarre problem, in view of the Guidelines’ complexity, may be misplaced. In addition, the cases and example cited in support of today’s outcome and discussed in the government’s brief do not neatly fit Eske’s circumstances. Thus, the example in Application Note 4 to U.S.S.G. section 1B1.2 (defendant pleading to three counts of robbery even though he was convicted for only one should be treated as having committed three robberies) involves crimes that may be closely related and for which the base offense level would likely be the same as that of the charged offense. In United States v. Collar, 904 F.2d 441 (8th Cir.1990), the court adjusted the offense level on the basis of two dismissed, less serious counts following the defen dant’s plea to four others. Moreover, the" }, { "docid": "14973511", "title": "", "text": "to their stated principles and purposes involves considering the Manual, the relevant cases, and the scholarly commentary. We can get particular guidance in the First Circuit because Chief Judge Stephen Breyer served on the Sentencing Commission which authored the Guidelines; has written relevant opinions such as United States v. Blanco, 888 F.2d 907, 911 (1st Cir.1989); and has written scholarly articles like the Hofstra law review piece which is cited and adopted in Blanco, see 888 F.2d at 911; S. Breyer, The Federal Sentencing Guide lines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1 (1988). We also have the benefit of the Wilkins and Steer article in the South Carolina Law Review. Wilkins & Steer, Relevant Conduct: The Cornerstone of the Federal Sentencing Guidelines, supra. Considering the language and structure of § 2E1.1, the relevant cases, and the scholarly commentary indicates the following with regard to the general purposes of the Guidelines. First, the Sentencing Guidelines are closer to a “charge offense” system than a “real offense” system of punishment. U.S.S.G. Ch. 1. Pt. A, 4(a), p. 5 (In the Guidelines submitted to Congress “the Commission moved closer to a charge offense system” than a pure real offense system); see also Blanco, 888 F.2d at 909-10 (“[T]he Sentencing Commission made [a compromise] among considerations that favor a ‘real offense’ sentencing system and those that favor a ‘charge offense’ system. ... The Commission’s compromise in the guidelines provides that, for the most part, the court will determine the applicable guideline by looking to the charge of which the offender was convicted”) (emphasis in original); Breyer, The Federal Sentencing Guidelines, 17 Hofstra L.Rev. at 7-11. As the Sentencing Commission stated in the Guidelines Manual: “the defendant’s actual conduct (that which the prosecutor can prove in court) imposes a natural limit on the prosecutor’s ability to increase a defendant’s sentence.” U.S.S.G. Ch. 1. Pt. A, 4(a), p. 5. The second relevant general purpose of the Guidelines is that, with some specified exceptions, the Guidelines are intended to duplicate national averages of pre-Guide-lines sentencing practices. U.S.S.G. Ch. 1. Pt. A," }, { "docid": "314138", "title": "", "text": "prosecution in Collar had charged all six offenses and then dropped two in exchange for the plea. United States v. Williams, 879 F.2d 454 (8th Cir.1989), similarly stands for the proposition that dismissed charged offenses can be used at sentencing and does not speak to uncharged offenses. In our own circuit, United States v. White, 888 F.2d 490 (7th Cir.1989), and United States v. Salva, 894 F.2d 225 (7th Cir.1990), involved uncharged conduct that was part of the activity or course of conduct forming the basis for the charged offenses: It is now the clear rule in this circuit that a court may consider activity of which the defendant has not been charged or convicted in determining the appropriate Guidelines sentence, so long as that activity is “part of the same course of conduct or common scheme or plan as the offense of conviction.” 894 F.2d at 230 (citing U.S.S.G. section 1B1.3(a)(2), White, and United States v. Vopravil, 891 F.2d 155, 157-78 & n. 4 (7th Cir.1989) (employing “clearly related conduct” test)). Eske’s case, on the other hand, involves a set of unrelated and uncharged offenses that carry a higher base offense level. This is a situation I do not believe the Sentencing Commission fully envisaged. Another potentially severe cost of “bootstrapping” more serious charges onto a less severe, charged offense may be that defendants are discouraged from pleading. Faced with the prospect of being sentenced for uncharged offenses that may result not in a marginal enhancement of a sentence but in a higher base offense level, what rational defendant would choose to plead? The value of the plea agreement to our justice system is apparent, and prosecutors will have to think carefully about the possible long-term effects of “bootstrapped” stipulations if the uncharged offenses carry a higher base offense level. The Sentencing Commission has indicated that it “will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary.” U.S.S.G., ch. 1, pt. A, introduction 4(a), at 1.5 (Nov. 1990). In the same paragraph the Commission states that “One of the most important [drawbacks" }, { "docid": "23351599", "title": "", "text": "of Guidelines based predominantly on a “charge offense” rather than “real offense” system. In other words, the offender would be punished for “the offense for which he was convicted,” as distinguished from the facts of the particular case. United States v. Guerrero, 863 F.2d 245, 248 (2d Cir.1988). This decision was a compromise, see Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1 (1988), and it is widely recognized that the “charge offense” approach is not pure; “it has a number of real elements.” Guerrero, 863 F.2d at 248 (citing Sentencing Guidelines ch. 1, pt. A, § 4(a), at p. 1.5). Some “flexibility [is retained] to provide individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.” Id.; see United States v. Seluk, 873 F.2d 15 (1st Cir.1989) (per curiam). As a general matter, therefore, although weighted toward the charge offense end of the spectrum, the Sentencing Guidelines permit the sentencing court the discretion to consider certain uncharged conduct, within the limits delineated below. 2. Uncharged Conduct There is no dispute concerning the process by which the court arrived at defendant’s sentence. When preparing the pre-sentence report the probation officer reviewed defendant’s sworn testimony at his earlier trial and estimated that during the approximately eighteen months before his arrest, defendant had used or sold between 1291 and 1648 grams of cocaine. According to the Drug Quantity Table contained in U.S.S.G. § 2D1.1, this established a Base Offense Level of 26. Guideline § 2D1.1(b)(1) permits a two-level enhancement for firearms possession, which was then added. Guideline § 3El.l(a) permits a two-level reduction for acceptance of responsibility, which was then subtracted, leaving the final Base Offense Level at 26. The probation officer then computed defendant’s criminal history and set it at catego ry I. Combining these two calculations, the Sentencing Table in U.S.S.G. § Ch. 5, Pt. A established a sentencing range from 63-78 months. Finding defendant “a principal cocaine trafficker in the Androscoggin County Maine area,” and “the magnitude of the trafficking activities" }, { "docid": "314130", "title": "", "text": "his criminal history category must be calculated from the date of the firearms charge in the indictment — October 13, 1988. Using this date, the sentence for the burglary conviction was imposed more than ten years before the commission of the instant offense and beyond his criminal history calculation. DISCUSSION Eske has not appealed his conviction. We are asked only to decide the propriety of Eske’s sentence. “The district court’s sentence ... will be affirmed if it results from a proper application of the sentencing guidelines to the facts not found to be clearly erroneous.” United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989); see also 18 U.S.C. § 3742; United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990). We conclude the language of the Sentencing Guidelines as explained by their commentary defeats this appeal, and so we affirm Eske’s sentence. Section lB1.2(c) of the Sentencing Guidelines answers Eske’s contention that the ten uncharged offenses may not be used in determining the appropriate offense level: “A conviction by a plea of guilty ... containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses.” The commentary to § 1B1.2 explains: “For example, if the defendant is convicted of one count of robbery, but, as part of a plea agreement, admits to having committed two additional robberies, the guidelines are to be applied as if the defendant had been convicted of three counts of robbery.” commentary note 4. Compare United States v. Collar, 904 F.2d 441, 442-43 (8th Cir.1990) (applying lB1.2(c) and the commentary and concluding that stipulated offenses are to be treated as convictions in determining the offense level); see generally United States v. White, 888 F.2d 490 (7th Cir.1989) (indicating the substantial deference owed to the commentary’s explanations of the Sentencing Guidelines). Eske stipulated to the ten violations and agreed that they would be considered in determining an appropriate guideline range. Stipulated offenses are to be treated as offenses of conviction. Therefore, these violations were properly included in his offense level" }, { "docid": "22315138", "title": "", "text": "misconduct relating to the smuggling of aliens and the possession and importation of counterfeit money, neither of which formed the basis for conviction. The Commission treated misconduct not resulting in conviction in four ways, each of which is instructive as to the issues on this appeal. First, the Commission identified, by examining thousands of prior sentences and presentence reports, those acts of misconduct that had traditionally influenced the sentences imposed for various crimes prior to the Guidelines. See U.S. S.G. Ch. 1, Pt. A § 4(b), at 1.7. This type of misconduct concerns acts that typically occur in the course of the offense for which the defendant was convicted and that aggravate the offense, for example, display of a weapon, infliction of injury, and taking large sums of money in connection with the offense of robbery. See id. § 2B3.1(b)(2)(C), (3), (6). The Commission labeled such misconduct “specific offense characteristics,” id. Ch. 1, Pt. A § 4(a), at 1.5, and assigned appropriate increments of adjustment to the base offense level to prescribe added punishment for such offense characteristics. The use of “specific offense characteristics” reflects a crucial compromise at the heart of the Sentencing Guidelines. Recognizing that it faced a choice between “charge offense” sentencing, which would specify sentences based solely on the elements of the offense of conviction, and “real offense” sentencing, which would specify sentences based on the defendant’s actual conduct, the Commission opted for a “modified real offense system.” See id. Ch. 1, Pt. A § 4(a), at 1.5; United States v. Correa-Vargas, 860 F.2d 35, 38-39 (2d Cir.1988); Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988). Having chosen to assign precise values to some “specific offense characteristics,” the Commission then identified the categories of misconduct that the sentencing judge could examine in determining whether to make these adjustments to the base offense level, as well as in selecting the appropriate base offense level where more than one such level is provided for an offense. The Commission accomplished this task by formulating the “relevant conduct” guideline," }, { "docid": "22827313", "title": "", "text": "modifies that level in light of several “real” aggravating or mitigating factors, (listed under each separate crime), several “real” general adjustments (“role in the offense,” for example) and several “real” characteristics of the offender, related to past record. Breyer, The Federal Sentencing Guidelines And The Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 11-12 (1988) (footnotes omitted). The creation of this hybrid system was formally recognized by the Commission itself. U.S.S.G. Ch. 1, Pt. A, intro. 4(a), comment. Relevant conduct, criminal history, and role in offense are examples of the real aspects of the sentencing guidelines. Procedural requirements for establishing the factual basis of sentencing, akin to the real offense aspects of pre-guideline sentencing, continue from former sentencing practices. See e.g., Breyer, supra at 10; LaFave & Israel, Criminal Procedure § 25.1 (Supp. 1990) (acknowledging that guidelines do not require a trial-type evidentiary hearing); Hutchison & Yellen, Federal Sentencing Law and Practice 406 (1989) (“The Federal Rules of Evidence, by their own terms, do not apply to the sentencing phase of a case. The Sentencing Reform Act did not alter that.”). According to one commentator: The relevant-conduct principle and cross-references between guidelines often work to ensure that the offense level is based on the actual offense behavior. For offenses like drug trafficking, theft, fraud, or tax evasion, conduct from uncharged or dismissed counts is often aggregated through application of the relevant conduct guideline section, lB1.3(a)(2).... Amendments promulgated since the original guidelines, and new proposals being considered in 1992, move the guidelines further toward a real-offense system. Paul J. Hofer, Plea Agreements, Judicial Discretion, And Sentencing Goals, FJC DIRECTIONS, No. 3, May 1992, at 3. Amended Fed.R.Crim.P. 32 deals with “sentence and judgment:” Sentence and Judgment (a) Sentence. (1) Imposition of sentence. ... At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. Before imposing sentence, the court shall also— (A) determine that the defendant and defendant’s counsel have had the opportunity" }, { "docid": "23054367", "title": "", "text": "count] — under guideline sentencing, counsel cannot bind the sentencing discretion of the district judge ”). Second, the guidelines were written to prevent the Government from manipulating indictments and prosecutions to increase artificially a defendant’s sentence or sentences for the same criminal conduct. The guidelines state that the Sentencing Commission “has written its rules for the treatment of multi-count convictions with an eye toward eliminating unfair treatment that might flow from count manipulation.” U.S.S.G. Ch. 1, Pt. A, intr. comment. § 4(a), p.s. The guideline sentencing scheme is designed to avoid “the potential [that] prosecutors [will] influence sentences by increasing or decreasing the number of counts in an indictment.” Id. Although these comments are directed at count manipulation in a single prosecution, they are equally applicable to manipulation in successive state and federal prosecutions. See Scroggins, 880 F.2d at 1214 (indicating that guidelines do not allow prosecutor to “cloak the facts to reach a result contrary to the guidelines’ mandate”). Moreover, interpreting section 5G1.3(b) to apply when the undischarged sentence resulted from conduct that was required to be taken into account in determining the defendant’s sentence, even if it was not taken into account, is in accord with the sentencing scheme embraced by the guidelines. Guideline sentencing represents a compromise between two competing paradigms of sentencing — “real offense” sentencing and “charge offense” sentencing. See generally Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises upon Which They Rest, 17 Hofstra L.Rev. 1, 8-12 (1988) (describing this compromise as one between “procedural” and “substantive” justice); see also Scroggins, 880 F.2d at 1212-13 (summarizing the dichotomy between the two systems). Under a real offense system, the sentencing judge considers all the defendant’s conduct surrounding the offense in fashioning a sentence. A charge offense system, on other hand, bases the defendant’s sentence only on the charged offense itself. The difference between the systems is best understood by considering an example. Posit a defendant convicted of robbery. Under a real offense system, the court will fashion a sentence based on the totality of the defendant’s conduct in committing the offense. Thus, a" }, { "docid": "23636854", "title": "", "text": "Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest,” 17 Hofs-tra L.Rev., 1, 8-12. The Commission ultimately moved closer to a “charge offense” approach to sentencing, basing sentences upon the offense for which a defendant was charged and convicted. However, it is not a pure system, and one compromise was to use a “real offense” approach for a particular subset of crimes that includes drug trafficking. This represents a specific departure from the decision generally to calculate sentences according to the criminal conduct for which the defendant has been charged and convicted; the drafters have not said that the Acceptance of Responsibility section is part of this exception. The interpretation we adopt does not render the “related conduct” phrase meaningless. Criminal conduct that relates directly to the pled count may be considered. For instance, in United States v. Lanese, 890 F.2d 1284, 1292-93 (2d Cir.1989) the court found that the defendant, who was convicted of using extortionate means to collect extensions of credit, had not accepted responsibility for his criminal conduct so as to justify the downward adjustment because he merely admitted his involvement in illegal gambling, and did not admit that he used extortionate means. See also United States v. Tellez, 882 F.2d 141 (5th Cir.1989) (§ 3E1.1 credit denied defendant who pled guilty to importing marijuana, in part because he never identified the persons who hired him to smuggle and never disclosed any significant fact relevant to the smuggling operation.) “Related conduct” could also encompass noneriminal conduct that is related to the pled count, for instance, if the defendant regularly associated with known drug dealers, but claimed merely to have stumbled unwittingly onto the drug scene, he could be found not to have accepted responsibility. Or past criminal conduct for which the defendant already had served a sentence but denied committing might constitute related conduct that a district court may consider if it is closely related to the present crime. For example, in United States v. Spraggins, 868 F.2d 1541 (11th Cir.1989), the sentencing judge denied § 3E1.1 credit even though the defendant admitted violating the" }, { "docid": "314139", "title": "", "text": "the other hand, involves a set of unrelated and uncharged offenses that carry a higher base offense level. This is a situation I do not believe the Sentencing Commission fully envisaged. Another potentially severe cost of “bootstrapping” more serious charges onto a less severe, charged offense may be that defendants are discouraged from pleading. Faced with the prospect of being sentenced for uncharged offenses that may result not in a marginal enhancement of a sentence but in a higher base offense level, what rational defendant would choose to plead? The value of the plea agreement to our justice system is apparent, and prosecutors will have to think carefully about the possible long-term effects of “bootstrapped” stipulations if the uncharged offenses carry a higher base offense level. The Sentencing Commission has indicated that it “will closely monitor charging and plea agreement practices and will make appropriate adjustments should they become necessary.” U.S.S.G., ch. 1, pt. A, introduction 4(a), at 1.5 (Nov. 1990). In the same paragraph the Commission states that “One of the most important [drawbacks of the charge offense system] is the potential it affords prosecutors to influence sentences by increasing or decreasing the number of counts in an indictment.” It is not clear whether the Commission considered the similar situation of unrelated, stipulated offenses affecting a sentence in the way illustrated by this case. Attention by the Commission may be in order." }, { "docid": "314129", "title": "", "text": "violations dating back to April 18, 1988. Eske agreed that these violations could be used “for determining the appropriate sentencing guideline range.” Plea Agreement f 6B(8)(d). At sentencing, the District Court calculated the offense category by treating the stipulated offenses as if Eske had been convicted of those violations as well as the firearms charge. The Court then included the earlier burglary conviction in Eske’s criminal history calculation because he had been sentenced for the burglary less than ten years before the earliest stipulated use (April 18, 1988) of a false Social Security number. Eske contends that because he has not been charged and convicted of use of a false Social Security number, the ten stipulated offenses cannot be used to determine the offense level. Instead, they can only be used to determine an appropriate point within an already established guideline range. See generally Sentencing Guidelines § 1B1.4 (allowing a sentencing court to consider any information concerning the defendant’s conduct in selecting an appropriate point within the applicable guideline range). In addition, he contends that his criminal history category must be calculated from the date of the firearms charge in the indictment — October 13, 1988. Using this date, the sentence for the burglary conviction was imposed more than ten years before the commission of the instant offense and beyond his criminal history calculation. DISCUSSION Eske has not appealed his conviction. We are asked only to decide the propriety of Eske’s sentence. “The district court’s sentence ... will be affirmed if it results from a proper application of the sentencing guidelines to the facts not found to be clearly erroneous.” United States v. Herrera, 878 F.2d 997, 1000 (7th Cir.1989); see also 18 U.S.C. § 3742; United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990). We conclude the language of the Sentencing Guidelines as explained by their commentary defeats this appeal, and so we affirm Eske’s sentence. Section lB1.2(c) of the Sentencing Guidelines answers Eske’s contention that the ten uncharged offenses may not be used in determining the appropriate offense level: “A conviction by a plea of guilty ..." }, { "docid": "1642726", "title": "", "text": "but then added 'an extra increment because the defendant has burdened the system by going to trial. In the second case, the judge is according a measure of leniency by viewing the guilty plea as evidence of acceptance of responsibility and, as such, worthy of consideration. There is an important difference between the two cases and that difference is critical for purposes of this appeal. For, in promulgating the Guidelines, the United States Sentencing Commission (“Commission”) sought to essentially replicate this practice, but to minimize even further the likelihood that a defendant could be penalized for exercising a constitutional right. Thus, the Guidelines explain that “inasmuch as those who pleaded guilty under pre-guidelines practice often received lesser sentences, the guidelines permit the court to impose lesser sentences on those defendants who accept responsibility for their misconduct.” U.S.S.G. Ch. 1, Pt. A at 4(g) (policy statement) (emphases added). It is noteworthy that the Commission rejected an automatic sentence reduction for all defendants who plead guilty in favor of a discretionary two-point offense level reduction, available to both defendants who plead guilty and those who go to trial. In so doing, it provided for the traditional guilty plea/lenieney notion to be taken into account in a wider context, i.e., an “acceptance of responsibility” two-level reduction. See William W. Wilkins, Jr., Plea Negotiations, Acceptance of Responsibility, Role of the Offender, and Departures: Policy Decisions in the Promulgation of Federal Sentencing Guidelines, 23 Wake Forest L.Rev. 181,191-92 (1988). Indeed, the Commission’s decision not to limit the reduction to defendants pleading guilty was motivated, in part, by its desire to avoid the constitutional dilemma of appearing to inflict a fixed penalty on defendants insisting upon a trial. See Dan Freed & Marc Miller, Plea Bargained Sentences, Disparity and “Guideline Justice”, 3 Fed. Sentencing Rep. 175, 176 (1991); Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 28-29 (1988). Accordingly, the 1990 Guidelines direct the sentencing judge to reduce the offense level by two “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility" }, { "docid": "23636853", "title": "", "text": "it was referring to something else. Cf. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion’ (citations omitted).... We refrain from concluding here that the differing language in the two subsections has the same meaning in each. We would not presume to ascribe this difference to a simple mistake in draftsmanship.”). The Commission’s inclusion for sentencing purposes of quantities of drugs charged in the indictment counts that the government later dismisses as part of plea bargain reflects a compromise between a “real offense” and a “charged offense” approach. A pure “charge offense” system would tie punishments directly to the offense for which the defendant was convicted. A “real offense” system bases punishment on the specific circumstances of the case and the defendant's actual conduct. See Guidelines Manual, 1.5-1.6; Breyer, “The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest,” 17 Hofs-tra L.Rev., 1, 8-12. The Commission ultimately moved closer to a “charge offense” approach to sentencing, basing sentences upon the offense for which a defendant was charged and convicted. However, it is not a pure system, and one compromise was to use a “real offense” approach for a particular subset of crimes that includes drug trafficking. This represents a specific departure from the decision generally to calculate sentences according to the criminal conduct for which the defendant has been charged and convicted; the drafters have not said that the Acceptance of Responsibility section is part of this exception. The interpretation we adopt does not render the “related conduct” phrase meaningless. Criminal conduct that relates directly to the pled count may be considered. For instance, in United States v. Lanese, 890 F.2d 1284, 1292-93 (2d Cir.1989) the court found that the defendant, who was convicted of using extortionate means to collect extensions of credit, had not accepted responsibility for his criminal conduct so as" }, { "docid": "14973512", "title": "", "text": "Ch. 1. Pt. A, 4(a), p. 5 (In the Guidelines submitted to Congress “the Commission moved closer to a charge offense system” than a pure real offense system); see also Blanco, 888 F.2d at 909-10 (“[T]he Sentencing Commission made [a compromise] among considerations that favor a ‘real offense’ sentencing system and those that favor a ‘charge offense’ system. ... The Commission’s compromise in the guidelines provides that, for the most part, the court will determine the applicable guideline by looking to the charge of which the offender was convicted”) (emphasis in original); Breyer, The Federal Sentencing Guidelines, 17 Hofstra L.Rev. at 7-11. As the Sentencing Commission stated in the Guidelines Manual: “the defendant’s actual conduct (that which the prosecutor can prove in court) imposes a natural limit on the prosecutor’s ability to increase a defendant’s sentence.” U.S.S.G. Ch. 1. Pt. A, 4(a), p. 5. The second relevant general purpose of the Guidelines is that, with some specified exceptions, the Guidelines are intended to duplicate national averages of pre-Guide-lines sentencing practices. U.S.S.G. Ch. 1. Pt. A, 4(g), p. 9; see also Blanco, 888 F.2d at 910; Breyer, The Federal Sentencing Guidelines, 17 Hofstra L.Rev. at 7; 17. More specifically, “the distinction that the Guidelines make in terms of punishment are primarily those which past practices [showed] were actually important factors in pre-Guideline sentencing.” Breyer, The Federal Sentencing Guidelines, 17 Hofstra L.Rev. at 17; see also U.S.S.G. Ch. 1. Pt. A, 4(g), “Sentencing Ranges,” p. 9 (“While the Commission has not considered itself bound by pre-guidelines sentencing practice, it has not attempted to develop an entirely new system of sentencing on the basis of theory alone. Guideline sentences, in many instances, will approximate average pre-guidelines practice ... ”). With regard to the third generally applicable principle, the compromise approach of using a modified charge offense system with some real offense elements to mirror pre-Guidelines sentencing practice was adopted by the Commission in part so that the sentencing system would not become unwieldy or procedurally unfair. See Breyer, The Federal Sentencing Guidelines, 17 Hofstra L.Rev. at 17. As the Court of Appeals for" }, { "docid": "8036052", "title": "", "text": "to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.... 18 U.S.C. § 3553(a)(2). The findings in the record bear directly on subsections (A), (B) and (C), and properly disregard (in this case) subsection. (D). Judge Gleeson found that the lesser included offense of illegal re-entry inadequately reflected the seriousness of Torres’ conduct in returning promptly after his deportation in order to add to his string of offenses, and that leniency in earlier cases had merely encouraged Torres to further disregard American law. It was no abuse of discretion for Judge Gleeson to decide that allowing Torres to plead to an offense carrying a’ statutorily-prescribed maximum sentence of twenty-four months, when the Guidelines applicable to the offense of indictment called for a much higher sentence, would disserve the purposes of the Guidelines. Because Torres was proposing to plead to a lesser offense than the one for which he was indicted, the district court possessed broad latitude to evaluate the proposed plea. The final sentence in the commentary to U.S.S.G. § 6B1.2 reflects that the review of a prosecutor’s proposal to dismiss a claim (here, the re-entry by an aggravated felon that was the sole count of the indictment against Torres), in consideration of a plea of guilty to some other offense (here, simple re-entry), implicates core judicial functions. In such a case, the court’s adjudicatory and sentencing responsibilities justify active scrutiny of the plea' agreement; the type of individualized analysis outlined in Severino remains appropriate. This view is reinforced by the Commission’s disavowal of any intention to “make major changes in plea agreement practices.” United States v. Stanley, 928 F.2d 575, 582 (2d Cir.1991) (quoting U.S.S.G., Ch.l, Part A, Introduction (Nov. 1990)); United States v. Aguilar, 884 F.Supp. 88, 90 (E.D.Ñ.Y.1995) (same); see also Stephen G. Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 31 (1988) (noting that the Guidelines" }, { "docid": "314135", "title": "", "text": "by the record and is not being challenged in this appeal. It cannot be clearly erroneous for a sentencing judge to deny a downward departure for acceptance of responsibility when the judge has already found that the defendant has willfully obstructed justice. See § 3E1.1 commentary note 4. CUDAHY, Circuit Judge, concurring. Although I agree fully with the majority’s interpretation of the Guidelines, I write separately to point out what seem to me anomalies and pitfalls inherent in their application here. Eske’s sentence seems inconsistent with the important balance struck by the Sentencing Commission between its basic “charge offense” sentencing philosophy and a contrasting “real offense” philosophy. Thus, the Guidelines provide for sentencing in accord with charged offenses, with the exception that certain characteristics of the crime may enhance the sentence to reflect the defendant’s background or circumstances surrounding the crime. United States v. Missick, 875 F.2d 1294, 1302 (7th Cir.1989); Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofs-tra L.Rev. 1, 8-12 (1988); U.S.S.G., ch. 1, pt. A, introduction 4(a), at 1.4-1.5 (Nov. 1990). The Commission recognized that its approach potentially afforded prosecutors discretion to affect the length of a sentence by adding counts to an indictment. U.S. S.G., ch. 1, pt. A, introduction 4(a), at 1.5 (Nov. 1990). Eske’s case presents a considerably more problematic opening for prose-cutorial expedients. True, Eske admitted that he committed the uncharged offenses. He “pleaded guilty” to them in an informal way. But it may not be clear that he understood the full consequences of his action. A stipulation of this sort to offenses more serious than the crimes charged (and pleaded to) may have a potential for misleading a defendant with respect to the consequences of a guilty plea. Defendant Eske no doubt believed that there was a quid pro quo in the plea bargain. The plea agreement provided that, “The government-agrees not to charge but the court will consider for determining the appropriate sentencing guideline range the following [Social Security number violations].” Plea Agreement at 5, reproduced in Appellant’s Br. at 14. Eske may not" }, { "docid": "314134", "title": "", "text": "Guidelines § 5D1.1 mandates a term of supervised release to follow a sentence of greater than one year. But for terms of one year or less, a period of supervised release is left to the discretion of the sentencing judge. If this appeal were resolved in Eske’s favor, his sentence would have been less than one year. The possibility that Eske could avoid his current supervised release upon resentencing prevents this case from being moot. . Eske has raised a final contention that he should have received a two level decrease in offense category for acceptance of responsibility pursuant to § 3E1.1. Eske's burden on this issue is particularly heavy as he is challenging a finding of fact of the District Court. See United States v. Reynolds, 900 F.2d 1000, 1004 (7th Cir.1990); see also 18 U.S.C. § 3742(e); Sentencing Guidelines § 3E1.1 commentary note 5. All we need say about Eske’s argument is that the District Court imposed a two level increase for obstruction of justice pursuant to § 3C1.1. This upgrade is supported by the record and is not being challenged in this appeal. It cannot be clearly erroneous for a sentencing judge to deny a downward departure for acceptance of responsibility when the judge has already found that the defendant has willfully obstructed justice. See § 3E1.1 commentary note 4. CUDAHY, Circuit Judge, concurring. Although I agree fully with the majority’s interpretation of the Guidelines, I write separately to point out what seem to me anomalies and pitfalls inherent in their application here. Eske’s sentence seems inconsistent with the important balance struck by the Sentencing Commission between its basic “charge offense” sentencing philosophy and a contrasting “real offense” philosophy. Thus, the Guidelines provide for sentencing in accord with charged offenses, with the exception that certain characteristics of the crime may enhance the sentence to reflect the defendant’s background or circumstances surrounding the crime. United States v. Missick, 875 F.2d 1294, 1302 (7th Cir.1989); Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofs-tra L.Rev. 1, 8-12 (1988); U.S.S.G., ch. 1, pt. A," } ]

[ { "docid": "23323598", "title": "", "text": "WATERMAN, Circuit Judge: Plaintiff-appellant, Armco Steel Corporation (Armco), a domestic producer of steel, challenges the legality of action taken by the Foreign-Trade Zones Board (Zones Board) in granting authorization to the Board of Commissioners of the Port of New Orleans (New Orleans Board) to establish in their port a foreign trade subzone. The initial purpose of this subzone grant was to premit in-tervenor-appellee Equitable Equipment Company, Inc. (Equitable), a shipbuilder, to construct with duty-free steel from Japan steel barge vessels at a shipyard located within the subzone. Foreign trade zones are areas located in, adjacent to, or nearby, ports of entry, into which foreign merchandise may be brought duty free and “stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured. * * * ” Section 3 of the Foreign Trade Zones Act, 19 U.S.C. § 81c. Such merchandise, whether in altered form or not, may then “be exported, destroyed, or sent into the customs territory of the United States. * * *” Id. If “sent into the customs territory of the United States” the merchandise “shall be subject to the laws and regulations of the United States affecting imported merchandise. * * * ” Id. The creation of a foreign or free trade zone for the purpose of permitting products manufactured in the zone to be subsequently imported into the United States allows an enterprise operating within the zone to take advantage of favorable differentials in the tariff schedules between the rates of duty for foreign materials used in the manufacturing process and the duty rates for the finished articles. For instance, in trade zones located in Toledo and Seattle, Volkswagen panel trucks are converted, using domestic labor and materials, into campers and are then imported. The transformation of the vehicles enables them to qualify as passenger vehicles subject to a 6.5% duty, rather than as trucks subject to a 25% duty. 19 U.S.C.A. § 1202, Items 692.10 and 945.69. In the instant case, the savings differential is so favorable that the duty rate otherwise payable" } ]

[ { "docid": "4369212", "title": "", "text": "question this presents is whether Congress has the power to regulate commerce within United States foreign trade zones, or whether it has precluded the reach of the Lanham Act into such zones by withdrawing from them Congress’ relevant regulatory powers. We hold that instead of withdrawing its power to regulate commerce in these zones, it is apparent that Congress has retained that authority, and delegated its use to a board consisting of the Secretary of Commerce, the Secretary of the Treasury, and the Secretary of the Army. 19 U.S.C. § 81a. Section 81c of the same act states that “[F]oreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the customs law of the United States ... be brought into [such zones].” 19 U.S.C. § 81c (emphasis added). A careful analysis of the Code of Federal Regulations on foreign trade zones and trademarks demonstrates why we find infringing goods in these zones are not precluded from the customs law. The Code distinguishes between prohibited and conditionally admissible merchandise. 19 C.F.R. § 146.31 (1991). The regulations state that “[district directors shall not admit prohibited merchandise,” id., which is defined as “merchandise the importation of which is prohibited by law on grounds of public policy or morals, or any merchandise which is excluded from a zone by order of the Board. Books urging treason or insurrection against the U.S., obscene pictures, and lottery tickets are examples of prohibited merchandise.” 19 C.F.R. § 146.1(b)(13). Customs regulations state that “[a]rticles of foreign or domestic manufacture bearing a mark or name copying or simulating a recorded trademark or trade name shall be denied entry and are subject to forfeiture as prohibited importations.” 19 C.F.R. § 133.21(a) (1991). It is reasonable to infer that merchandise that infringes trademarks under section 133.21(a) would be another example of prohibited merchandise under section 146.31. Thus, Congress has and does exercise the power to regulate commerce — including “merchandise that infringes trademarks”— inside foreign trade zones. Given this fact, entry of infringing goods into a foreign trade zone is a sufficient" }, { "docid": "4662194", "title": "", "text": "a portion of the zone to firms that subsequently locate within that zone, subzones are generally used by a single firm. DeKieffer & Thompson, Political and Policy Dimensions of Foreign Trade Zones: Expansion or the Beginning of the End% 18 Vand. J. Transnat’l L. 481, 492 (1985). Subzones are especially attractive to domestic manufacturers that import component parts or raw materials because the board may authorize subzones for existing or planned production fa cilities and thus spare manufacturers from relocating facilities to existing or authorized general purpose zones. Id. The Metropolitan Nashville Port Authority applied to the Board on December 18, 1981 for authority to establish a foreign trade sub-zone at Nissan’s vehicle manufacturing and assembly plant in Smyrna, Tennessee. On February 2, 1982, Nissan requested a Customs ruling under 19 C.F.R. § 177.1(a)(1) regarding its future obligations for duties. Nissan stated that production machinery to be used in the subzone consisted of a highly automated integrated system of industrial robots, automated conveyor and stamping systems, and a complex computerized interface. In the proposed final configuration, Nissan noted that it was uncertain whether the machinery would be capable of full-scale production of motor vehicles, and that machinery needed to be assembled, installed and tested. As a result of these tests, Nissan stated that some or all of the machinery might be returned to the foreign manufacturers, replaced, redesigned, or scrapped as useless. Upon the facts Nissan presented, Customs decided that production equipment imported into a foreign trade zone is not \"merchandise” for purposes of the Foreign Trade Zones Act and is thus dutiable. In Nissan’s case, however, Customs deferred assessment of duties on the production machinery until it was completely installed and tested in full-scale production of motor vehicles in the subzone. C.S.D. 82-103, 16 Cust. Bull. 869, 870 (1982). The Board approved the application for the foreign trade zone subzone, Resolution and Order Approving Applications ofMetropoli-tan-Nashville Davidson County Port Authority for a Foreign-Trade Zone and Subzone in the Nashville Customs Port of Entry Area, 47 Fed. Reg. 16,191 (Apr. 15, 1982), and in May of 1982 Nissan began to" }, { "docid": "22459118", "title": "", "text": "or on the finished merchandise when it is imported into U.S. customs territory for domestic consumption. The company can thus take advantage of any favorable differential between the rate of duty for the foreign merchandise and that for the finished merchandise. See Armco Steel Corp. v. Stans, 431 F.2d 779, 782 (2d Cir.1970). .A subzone has all the characteristics of a zone except that it is an area separate from an existing zone. See 15 C.F.R. § 400.304 (1991). It can only be created when a company cannot be accommodated within the zone. Id. Only the grantee of the zone can apply for subzone status. See 15 C.F.R. § 400.106 (1991). That is why the District applied for subzone status on behalf of Conoco and Citgo. . A third condition, immaterial for purposes of this appeal, was imposed and subsequently revoked by the Board on March 27, 1991. . On the merits, appellants claim that the Board's action is arbitrary and capricious in view of the Board’s failure to impose these conditions in like circumstances in five instances prior to March of 1988. Appellants also claim that the Board's action is inconsistent with their right to elect whether to pay duties on foreign crude or on refined products produced therefrom. . Pursuant to Rule 56.1 of the Rules of the Court of International Trade. . See 19 U.S.C. § 81r(c). . This threshold requirement does not appear in the statute, but finds expression in certain of our precedents. See, e.g., Miller & Co. v. United States, 824 F.2d 961, 963 (Fed.Cir.1987), cert. denied, 484 U.S. 1041, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988). It may have a basis in the prefatory \"[i]n addition to” language of subsection (i). See United States v. Uniroyal, Inc., 687 F.2d 467, 475 (CCPA 1982) (Nies, J., concurring). It presumably serves the purpose of carrying out Congress' intent that subsection (i) be a \"residual” grant of jurisdiction, and not be used to routinely bypass the \"traditional method” of obtaining judicial review of international trade disputes involving Customs — filing a protest and then seeking judicial" }, { "docid": "4662193", "title": "", "text": "the laws and regulations of the United States affecting imported merchandise * * * 19 U.S.C. § 81c (1982). The Foreign Trade Zones Act is administered by the Foreign Trade Zones Board (Board), which has authority to grant to public and private corporations, as those terms are defined in 19 U.S.C. § 81a(e) and (f) (1982), the privilege of establishing, operating, and maintaining foreign trade zones in or adjacent to United States Customs ports of entry. 19 U.S.C. § 81b(a) (1982). In 1952 the Board promulgated regulations pursuant to 19 U.S.C. § 81h to authorize \"zones for specialized purposes” or \"subzones” in areas separate from existing free trade zones \"for one or more of the specialized purposes of storing, manipulating, manufacturing, or exhibiting goods” when the Board finds that existing or authorized zones will not serve adequately the convenience of commerce with respect to the proposed purposes. 17 Fed. Reg. 5316 (June 11, 1952), now codified without amendment at 15 C.F.R. § 400.304 (1988). In contrast to general purpose zones where a municipal corporation leases a portion of the zone to firms that subsequently locate within that zone, subzones are generally used by a single firm. DeKieffer & Thompson, Political and Policy Dimensions of Foreign Trade Zones: Expansion or the Beginning of the End% 18 Vand. J. Transnat’l L. 481, 492 (1985). Subzones are especially attractive to domestic manufacturers that import component parts or raw materials because the board may authorize subzones for existing or planned production fa cilities and thus spare manufacturers from relocating facilities to existing or authorized general purpose zones. Id. The Metropolitan Nashville Port Authority applied to the Board on December 18, 1981 for authority to establish a foreign trade sub-zone at Nissan’s vehicle manufacturing and assembly plant in Smyrna, Tennessee. On February 2, 1982, Nissan requested a Customs ruling under 19 C.F.R. § 177.1(a)(1) regarding its future obligations for duties. Nissan stated that production machinery to be used in the subzone consisted of a highly automated integrated system of industrial robots, automated conveyor and stamping systems, and a complex computerized interface. In the proposed final" }, { "docid": "4662195", "title": "", "text": "configuration, Nissan noted that it was uncertain whether the machinery would be capable of full-scale production of motor vehicles, and that machinery needed to be assembled, installed and tested. As a result of these tests, Nissan stated that some or all of the machinery might be returned to the foreign manufacturers, replaced, redesigned, or scrapped as useless. Upon the facts Nissan presented, Customs decided that production equipment imported into a foreign trade zone is not \"merchandise” for purposes of the Foreign Trade Zones Act and is thus dutiable. In Nissan’s case, however, Customs deferred assessment of duties on the production machinery until it was completely installed and tested in full-scale production of motor vehicles in the subzone. C.S.D. 82-103, 16 Cust. Bull. 869, 870 (1982). The Board approved the application for the foreign trade zone subzone, Resolution and Order Approving Applications ofMetropoli-tan-Nashville Davidson County Port Authority for a Foreign-Trade Zone and Subzone in the Nashville Customs Port of Entry Area, 47 Fed. Reg. 16,191 (Apr. 15, 1982), and in May of 1982 Nissan began to place in the subzone production equipment valued at approximately $116,314,883, with over $3,000,000 in assessed duties. See Suzman, An Evaluation of Current Trends in Foreign Direct Investment in the Southeast United States, 18 Vand. J. Transnat’l L. 247, 257-58 (1985) (description of the Nissan Subzone). The 29 entries involved in this action were filed on June 13, 1983 and liquidated as entered on June 6, 1986. The liquidations were protested on September 3, 1986 and denied on January 8, 1987. The Court has jurisdiction under 28 U.S.C. § 1581(a) (1982). Discussion 1 The Foreign Trade Zones Act provides that merchandise may be brought into foreign trade zones and \"may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into Customs territory of the United States * * 19 U.S.C. § 81c (1982). The Court finds that the imports in this action are actively used or intended to" }, { "docid": "18315253", "title": "", "text": "limited to the subject matter merchandise, that is — non-privileged foreign merchandise. . The specific merchandise involved in the present action was “entered” between September and November 1972. . Mr. Joy is the vice-president of the plaintiff who conceived the idea for a foreign trade zone refinery and handled all the technical requirements for its establishment. . The Foreign Trade Zones Board is the administrative body charged by Congress with the ultimate responsibility for administering the Foreign Trade Zones Act. It is composed of the Secretary of Commerce, who serves as its chairman, and the Secretaries of the Treasury and the Army. See 19 U.S.C. § 81a(b). . The customs service has never attempted to impose duties upon this noncondensable fuel gas. . Mr. Joy testified that maximum atomization is important to give the mixture an optimum surface area with which to absorb the radiant heat in the fire box. . General Headnote 3 specifies the method for computing the particular rates of duty which apply to merchandise from different countries and insular possessions. . An example of a limited authorization for the application of the customs laws to merchandise within a zone is the Act’s provision for privileged merchandise. Pursuant to this statutory authorization, the owner may request customs to take his merchandise under supervision and to appraise and classify it and liquidate its customs duties thereon while the merchandise is still in the zone. Duties so liquidated are not collected, however, until the merchandise actually enters the customs territory. See note 1, supra. As stated in note 1, the merchandise here in issue is nonprivileged foreign merchandise. . Section 146.48 of the Regulations deals with the importation of merchandise such as is involved herein from a foreign trade zone into the customs territory. See 19 C.F.R. § 146.48(a)(1) (1972). Subsection (b) of this regulation, id. § 146.48(b), provides that the mechanics for the constructive transfer of the merchandise are governed by the provisions of section 146.-47(b)-(f). See id. § 146.47(b)-(f). . Forsooth, this has been the position of the customs service, itself. With respect to the consumption entries" }, { "docid": "22102339", "title": "", "text": "(2d Cir.1970). As amicus National Association of Foreign-Trade Zones points out, foreign-trade zones provide many advantages to manufacturers: duties need not be paid on merchandise that is damaged or otherwise lacking commercial value; and privileged foreign merchandise is dutied at the rate applicable when it enters the zone, thus avoiding payment of duty on the value added within the zone. That the waste allowance may enure to the benefit of importers does not justify construing it so that it has little or no value. Conclusion Accordingly, the judgment of the Court of International Trade is reversed. COSTS Each party shall bear its own costs. REVERSED. . Under 19 C.F.R. § 146.41(a) (1995), foreign merchandise admitted to a foreign-trade zone may be designated \"privileged” at any time before it is manipulated or manufactured, upon application to and approval by the district director of Customs with jurisdiction over the foreign-trade zone. Privileged foreign merchandise retains its original identity even if it later goes through a manufacturing process. See id. § 146.41(e). For example, in this case, privileged foreign steel was made into furnaces in the zone. When the furnaces were entered into United States customs territory, it was the steel, not the finished furnaces, that was considered entered and subject to duty. . A foreign-trade subzone \"has all the characteristics of a zone except that it is an area separate from an existing zone\" and \"can only be created when a company cannot be accommodated within the zone.” Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1582 n. 3 (Fed.Cir.1994). . The scrap was classified as nonprivileged foreign merchandise and was entered and appraised at the transaction value of $81.68. There is no dispute over the dutiable value of the scrap or the duties paid on it. . Because Goodman’s manufacturing process did not produce any irrecoverable waste, the issue of how to calculate the allowance for it is not before us. We note, however, that it is no more difficult to deal with irrecoverable waste than recoverable waste using this approach; because irrecoverable waste by definition has no" }, { "docid": "16634568", "title": "", "text": "400.304 to designate as a special-purpose subzone the crude oil refinery of Plaintiff Conoco in Calcasieu Parish, Louisiana, adjacent to the Lake Charles port of entry. Another subzone application was filed in December 1987 on behalf of Plaintiff Citgo to designate the crude oil refinery facilities of Citgo at Lake Charles, Louisiana, as a special-purpose subzone. In response to the two applications, the FTZ Board issued two separate orders granting the special-purpose subzone status requested and imposed substantially identical conditions relating to the establishment of the two respective subzones. The conditions set forth in the separate Conoco and Citgo orders are as follows: (1) Foreign crude oil used as fuel for the refinery shall be dutiable. (2) [Conoco and Citgo, as the case may be] shall elect privileged foreign status on foreign crude oil and other foreign merchandise admitted to the subzone. (3) The U.S. Customs Service shall inform the Foreign-Trade Zones Board on or before July 1, 1991, that a satisfactory control system has been implemented so that the revenue can be fully protected; otherwise the authority finder this grant shall expire on that date. Resolution and Order Approving the Application of the Lake Charles Harbor and Terminal District for a Subzone at the Conoco, Inc., Refinery in Calcasieu Parish, LA, 53 Fed. Reg. 52,455 (1988); Resolution and Order Approving the Application of the Lake Charles Harbor and Terminal District for a Subzone at the Citgo Petroleum Corp. Refinery in Calcasieu Parish, LA, 54 Fed. Reg. 27,660 (1989). Presumably one result of the conditions placed upon the Plaintiffs is that they impose a duty upon crude oil used as refinery fuel by Plaintiffs in the subzone duty under the tariff schedules of the United States. Imposition of these conditions, which the FTZ Board has apparently applied to all new refinery subzone grants after 1985, marked a departure from prior Board practice. Between 1970 and 1985, the FTZ Board approved five applications for oil refining subzones without the conditions attached to Plaintiffs’ grants (or other post-1985 grants). See Affidavit of John J. DaPonte, Jr., Executive Secretary of the Foreign-Trade Zones" }, { "docid": "22459116", "title": "", "text": "International Trade, felt compelled by precedent to hold that his court lacked jurisdiction because the suit was premature, he expressed the following personal sentiments: This Court feels compelled to express its sense of exasperation and frustration with the results of this case. Individuals and firms are often required to expend an inordinate amount of time and money to obtain judicial review in this Court. They are required to navigate arcane jurisdictional passages. They waste time and resources fighting over jurisdiction and oftentimes they are denied a chance to be heard on the merits of the case. These obstacles unnecessarily increase cost and hurt the efforts of the United States to be competitive in the international community. 790 F.Supp. at 288-89. Judge Carman states well the reasons why Congress granted to the Court of International Trade the jurisdiction it did. It is time to bring to an end the unproductive jurisdictional ping-pong games, and to give litigants their right to expeditious and timely decisions on the merits of their claims. III. CONCLUSION For all the foregoing reasons, we reverse the decision of the Court of International Trade dismissing the action for lack of subject matter jurisdiction, and remand the case to that court for an adjudication on the merits. REVERSED AND REMANDED . The Board is a governmental entity which has the authority to grant to corporations the privilege of establishing, operating, and maintaining a foreign trade zone in the United States. See 19 U.S.C. § 81b(a) (1988). . A foreign trade zone is a geographical area located adjacent to or in a port of entry into the United States. See 19 U.S.C. § 81b (1988). The grantee of a zone — District here — has the authority to permit others to operate within the zone subject to the approval of the Board. See 19 U.S.C. § 81m (1988). A company operating within the zone can import foreign merchandise into the zone and manufacture finished merchandise therefrom. See 19 U.S.C. § 81c (1988). It can elect whether to pay duties on the foreign merchandise when it is imported into the zone," }, { "docid": "4662192", "title": "", "text": "them by land, water, or air.” 15 C.F.R. § 400.101 (1988). Among other benefits, foreign trade zones often permit an importer to lessen its liability for duties or avoid quota problems. The original Foreign Trade Zones Act did not permit merchandise to be manufactured in a zone. In 1950, section 3 of the Foreign Trade Zones Act was amended to provide that: Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the Customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into Customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into Customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise * * * 19 U.S.C. § 81c (1982). The Foreign Trade Zones Act is administered by the Foreign Trade Zones Board (Board), which has authority to grant to public and private corporations, as those terms are defined in 19 U.S.C. § 81a(e) and (f) (1982), the privilege of establishing, operating, and maintaining foreign trade zones in or adjacent to United States Customs ports of entry. 19 U.S.C. § 81b(a) (1982). In 1952 the Board promulgated regulations pursuant to 19 U.S.C. § 81h to authorize \"zones for specialized purposes” or \"subzones” in areas separate from existing free trade zones \"for one or more of the specialized purposes of storing, manipulating, manufacturing, or exhibiting goods” when the Board finds that existing or authorized zones will not serve adequately the convenience of commerce with respect to the proposed purposes. 17 Fed. Reg. 5316 (June 11, 1952), now codified without amendment at 15 C.F.R. § 400.304 (1988). In contrast to general purpose zones where a municipal corporation leases" }, { "docid": "4748414", "title": "", "text": "25-27. This Court has fully addressed these arguments and adheres to its decision on this issue in Federal-Mogul Corp., 17 CIT at ---, 813 F.Supp. at 866-868. Therefore, this Court finds that the methodology used by the ITA in this review is reasonable and in accordance with law. See also Zenith Elecs. Corp. v. United States, 15 CIT 394, -, 770 F.Supp. 648, 655 (1991); Daewoo Elecs. Co. v. United States, 13 CIT 253, 283, 712 F.Supp. 931, 957 (1989). 3. Treatment of Antifriction Bearings Imported into Foreign Trade Zones Torrington challenges the ITA’s treatment of antifriction bearings (“AFBs”) imported into the U.S. through foreign trade zones. Section 81b of Title 19, United States Code, provides authority for the Secretary of Commerce to set up foreign trade zones (“FTZ”) at U.S. ports of entry. This process is supervised by the Foreign Trade Zones Board and the U.S. Customs Service (“Customs”). 19 U.S.C. § 81b (1988). Pursuant to the statute, merchandise brought into a FTZ may be exempt from U.S. customs laws. The relevant provisions of 19 U.S.C. § 81c(a) (1988) state: (a) Handling of merchandise in zone; shipment of foreign merchandise into customs territory; appraisal; reshipment to zone Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be ... mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise: Provided, That whenever the privilege shall be requested and there has been no manipulation or manufacture effecting a change in tariff classification, the appropriate customs officer shall take under supervision any lot or part of a lot of" }, { "docid": "22102340", "title": "", "text": "foreign steel was made into furnaces in the zone. When the furnaces were entered into United States customs territory, it was the steel, not the finished furnaces, that was considered entered and subject to duty. . A foreign-trade subzone \"has all the characteristics of a zone except that it is an area separate from an existing zone\" and \"can only be created when a company cannot be accommodated within the zone.” Conoco, Inc. v. United States Foreign-Trade Zones Bd., 18 F.3d 1581, 1582 n. 3 (Fed.Cir.1994). . The scrap was classified as nonprivileged foreign merchandise and was entered and appraised at the transaction value of $81.68. There is no dispute over the dutiable value of the scrap or the duties paid on it. . Because Goodman’s manufacturing process did not produce any irrecoverable waste, the issue of how to calculate the allowance for it is not before us. We note, however, that it is no more difficult to deal with irrecoverable waste than recoverable waste using this approach; because irrecoverable waste by definition has no value, it would be accorded an allowance of full value." }, { "docid": "4662191", "title": "", "text": "DiCarlo, Judge: Cross-motions for summary judgment, made pursuant to Rule 56 of the Rules of this Court, frame the question of whether machinery imported to produce merchandise in a foreign trade zone subzone should be subject to duty. Nissan Motor Manufacturing Corporation U.S.A. (Nissan) moves for summary judgment requiring the United States Customs Service (Customs) to reliqui-date entries of production machinery and related capital equipment and refund over $3,000,000 in duties. The United States moves for summary judgment affirming Customs’ assessment of duties. The Court finds from its review of the Foreign Trade Zones Act and the relevant legislative history that machinery and related capital equipment imported to produce merchandise in a foreign trade zone subzone are subject to duty. Defendant’s motion for summary judgment is granted; Nissan’s motion for summary judgment is denied. Background A foreign trade zone is \"an isolated, enclosed and policed area, operated as a public utility, in or adjacent to a port of entry, furnished with facilities for loading, unloading, handling, storing, manipulating, manufacturing, and exhibiting goods, and for reshipping them by land, water, or air.” 15 C.F.R. § 400.101 (1988). Among other benefits, foreign trade zones often permit an importer to lessen its liability for duties or avoid quota problems. The original Foreign Trade Zones Act did not permit merchandise to be manufactured in a zone. In 1950, section 3 of the Foreign Trade Zones Act was amended to provide that: Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the Customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into Customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into Customs territory of the United States it shall be subject to" }, { "docid": "10650004", "title": "", "text": "“merchandise” may be, among other things, stored, manipulated, manufactured, and exhibited. 19 U.S.C. § 81c; 15 C.F.R. § 400.101. If merchandise which is brought duty-free into a zone is subsequently imported into the customs territory of the United States from a zone, the applicable duty must be paid. However, no duty need be paid if the merchandise is reshipped from the zone to a foreign country. A sub-zone is an adjunct to a zone and is used for “one or more of the specialized purposes” for which a zone can be used. 15 C.F.R. § 400.304. At present, ten zones, used for general purposes, and five sub-zones, used for specialized purposes, have been established by the Zones Board in the United States. Foreign-Trade Zone No. 2, lo-' cated in New Orleans, Louisiana, was established in 1947, and is under the administration of the New Orleans Board. The sub-zone authorized by the Order is a noncontiguous adjunct to Foreign-Trade Zone No. 2. The saga of the sub-zone commenced in October 1967 when the New Orleans Board was approached by representatives of Equitable-Higgins Shipyard, Inc. (Equitable) to explore the possibility of establishing a sub-zone in the Equitable shipyard for the specialized purpose of manufacturing barges to be used aboard LASH, vessels. After receiving bids from Equitable and other domestic and foreign shipbuilders, Central Gulf Steamship Corporation (Central Gulf) entered into a contract with Equitable on January 17, 1968 under which Equitable was to build 233 barges to be manufactured out of steel plates imported from Japan, Equitable to use its “best efforts” to insure that a sub-zone would be established in New Orleans for the construction of the barges. The contract price assumed that the steel plates from Japan would be brought into the sub-zone without payment of customs duties, and that the completed barges, as “vessels,” would enter the customs territory of the United States duty free. On March 18, 1968, the New Orleans Board applied to the Zones Board for the establishment of the sub-zone in a 3.64 acre area within the Equitable shipyard. In the application, the New Orleans" }, { "docid": "22459117", "title": "", "text": "reasons, we reverse the decision of the Court of International Trade dismissing the action for lack of subject matter jurisdiction, and remand the case to that court for an adjudication on the merits. REVERSED AND REMANDED . The Board is a governmental entity which has the authority to grant to corporations the privilege of establishing, operating, and maintaining a foreign trade zone in the United States. See 19 U.S.C. § 81b(a) (1988). . A foreign trade zone is a geographical area located adjacent to or in a port of entry into the United States. See 19 U.S.C. § 81b (1988). The grantee of a zone — District here — has the authority to permit others to operate within the zone subject to the approval of the Board. See 19 U.S.C. § 81m (1988). A company operating within the zone can import foreign merchandise into the zone and manufacture finished merchandise therefrom. See 19 U.S.C. § 81c (1988). It can elect whether to pay duties on the foreign merchandise when it is imported into the zone, or on the finished merchandise when it is imported into U.S. customs territory for domestic consumption. The company can thus take advantage of any favorable differential between the rate of duty for the foreign merchandise and that for the finished merchandise. See Armco Steel Corp. v. Stans, 431 F.2d 779, 782 (2d Cir.1970). .A subzone has all the characteristics of a zone except that it is an area separate from an existing zone. See 15 C.F.R. § 400.304 (1991). It can only be created when a company cannot be accommodated within the zone. Id. Only the grantee of the zone can apply for subzone status. See 15 C.F.R. § 400.106 (1991). That is why the District applied for subzone status on behalf of Conoco and Citgo. . A third condition, immaterial for purposes of this appeal, was imposed and subsequently revoked by the Board on March 27, 1991. . On the merits, appellants claim that the Board's action is arbitrary and capricious in view of the Board’s failure to impose these conditions in like circumstances" }, { "docid": "18315230", "title": "", "text": "BOE, Judge: This case presents a question of statutory interpretation and application with respect to the administration of the Foreign Trade Zones Act, as amended, 19 U.S.C. § 81a et seq. A foreign trade zone is “an isolated, enclosed, and policed area, operated as a public utility, in or adjacent to a port of entry, furnished with facilities for lading, unlading, handling, storing, manipu lating, manufacturing, and exhibiting goods, and for reshipping them by land, water, or air.” 15 C.F.R. § 400.101 (1972). Pursuant to the provisions of section 3 of the Foreign Trade Zones Act, as amended, 19 U.S.C. § 81c, Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the customs laws of the United States, except as otherwise provided in this chapter, be brought into a zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this chapter, and be exported, destroyed, or sent into customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise: * * *. For purposes of the entry of foreign merchandise and the payment of customs duties thereon, a foreign trade zone is not considered to be a part of the customs territory of the United States. 15 C.F.R. § 400.101 (1972); see also 19 C.F.R. § 146.1(c) (1972). The issue to be resolved in this case is whether foreign merchandise which is used as an integral part of a permissible manufacturing process within a zone, but which never enters the customs territory of the United States, is subject to duty under the Tariff Schedules of the United States. The merchandise, invoiced variously as “industrial fuel oil,” “gas oil,” “heavy gas oil,” and “light gas oil,” was processed from foreign crude oil imported into" }, { "docid": "4662204", "title": "", "text": "a territorial interpretation of the Foreign Trade Zones Act. Defendant distinguishes Hawaiian Indep. Refinery on the basis that while refined crude oil is merchandise within the meaning of the Foreign Trade Zones Act, production equipment is not merchandise because Congress’ exhaustive list of permissible operations does not permit an article to be brought into a zone, free of duty, to be used as production machinery to make other articles. As a matter of public policy, defendant states that Congress did not intend to place domestic manufacturers or sellers of production machinery at a competitive disadvantage with foreign-manufactured production machinery that could be imported without duty for foreign trade zones and sold cheaper. The Court finds that the exhaustive list of permitted activities and the relevant legislative history show that foreign-manufactured machinery imported to manufacture goods in a foreign trade zone are not exempt from duty. 2 Noting that Hawaiian Indep. Refinery stated that \"merchandise is not subject to the customs laws while in a zone, unless the Foreign Trade Zones Act authorizes their application”, 81 Cust. Ct. at 122, 460 F. Supp. at 1254, defendant also argues that the Act authorizes application of the tariff schedules to Nissan’s production equipment because the Board specifically contemplated payment of these duties in creating Nissan’s subzone. Defendant asserts that because the Board is directed to \"prescribe such rules and regulations * * * as may be necessary to carry out” the Act, 19 U.S.C. § 81h (1982), Nissan cannot avoid payment of duties on its production equipment. Defendant asserts that Nissan implicitly acknowledged its obligation to pay duties on production equipment in the \"formal and complete application to establish a foreign trade zone” and a \"Basic Plan for the FTZ System” which were submitted in May of 1982. Memorandum in Opposition to Plaintiffs Motion for Summary Judgment and in Support of Defendant’s Motion for Summary Judgment, at 21-23. Defendant asserts \"[tjhese documents define the scope of the zone granted by the Board.” Id. at 23. Without addressing the Board’s authority to condition the granting of a zone or subzone on the payment of" }, { "docid": "10650003", "title": "", "text": "OPINION BONSAL, District Judge. Armeo Steel Corporation (Armco) seeks a declaratory judgment holding unlawful and setting aside an order issued on November 19, 1968 (the Order) by the Foreign-Trade Zones Board (the Zones Board) granting the Board of Commissioners of the Port of New Orleans (the New Orleans Board) the right to set up a foreign-trade sub-zone (sub-zone). Jurisdiction is based upon 28 U. S.C. § 2201 and 28 U.S.C. §§ 1331(a), 1337, and 1340. Congress established the Zones Board in 1934 (Foreign Trade Zones Act, 48 Stat. 998 et seq., 19 U.S.C. §§ 81a et seq.), consisting of the Secretary of Commerce, as Chairman, and the Secretaries of the Treasury and of the Army. The Zones Board is authorized to “grant to corporations the privilege of establishing, operating, and maintaining foreign-trade zones in or adjacent to ports of entry under the jurisdiction of the United States.” (19 U.S.C. § 81b(a).) “Corporations” may be public or private (§ 81a(d)). A foreign-trade zone (zone) is a duty-free area within the United States where foreign and domestic “merchandise” may be, among other things, stored, manipulated, manufactured, and exhibited. 19 U.S.C. § 81c; 15 C.F.R. § 400.101. If merchandise which is brought duty-free into a zone is subsequently imported into the customs territory of the United States from a zone, the applicable duty must be paid. However, no duty need be paid if the merchandise is reshipped from the zone to a foreign country. A sub-zone is an adjunct to a zone and is used for “one or more of the specialized purposes” for which a zone can be used. 15 C.F.R. § 400.304. At present, ten zones, used for general purposes, and five sub-zones, used for specialized purposes, have been established by the Zones Board in the United States. Foreign-Trade Zone No. 2, lo-' cated in New Orleans, Louisiana, was established in 1947, and is under the administration of the New Orleans Board. The sub-zone authorized by the Order is a noncontiguous adjunct to Foreign-Trade Zone No. 2. The saga of the sub-zone commenced in October 1967 when the New Orleans Board" }, { "docid": "10650016", "title": "", "text": "* *” (The 1948 Hearings, p. 12) (Emphasis added). Since Armco contends that the Zones Board by its Order is denying it the protection accorded by the tariff laws, and is using the Act to foster competition between domestic and foreign steel manufacturers, it has standing to bring this action. ARMCO’S MOTION FOR SUMMARY JUDGMENT Armco argues that the Zones Board’s Order is illegal because 1) the Act does not authorize the construction of vessels in a zone or sub-zone; 2) the Order nullifies the tariff laws and enables Equitable to evade customs duties; 3) the sub-zone cannot be operated as a “public utility,” as required by the Act, since it will be used solely by a private corporation; 4) the Zones Board’s findings of fact are insufficient and are not based on substantial evidence; and 5) the real applicant for the sub-zone is Equitable, not the New Orleans Board. 1. The Act does not authorize the construction of vessels in a zone or subzone. Section 3 of the Act (as amended in 1950), 19 U.S.C. § 81c,provides: “Foreign * * * merchandise of every description, except such as is prohibited by law, may, without being subject to the customs laws of the United States * * * be brought into a zone and may be * * * manufactured except as otherwise provided in this chapter, and be * * * sent into customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise * * * >f The Regulations promulgated by the Bureau of Customs with respect to Foreign-Trade Zones provide: “Merchandise which is specifically and absolutely prohibited by law shall not be admitted into a zone. * * * * * * “When merchandise * * * is to be transferred from a zone to customs territory, the grantee shall make an application to the collector * * * The applicant shall" }, { "docid": "16634567", "title": "", "text": "and dismissed Plaintiffs’ suit for lack of subject-matter jurisdiction, without prejudice, and at Plaintiffs’ costs. Conoco, Inc. and Lake Charles Harbor and Terminal District v. The United States Foreign-Trade Zone Board, et al, Civil Action No. 89-1717-LC (U.S.D.C., W.D. La., 1990). The District Court determined, after an independent review of the record and a de novo determination of the issues, that the findings of the Magistrate in his Report and Recommendation were correct. The Magistrate opined that, although 28 U.S.C. § 1581(i) does not create any substantive rights granting exclusive jurisdiction to the Court of International Trade (“CIT”), nevertheless, because the case involved an appeal of an administrative decision directly relating to tariffs on imported goods and the use of revenue in that field, § 1581 (i) should be applicable to the case regardless of whether an actual tariff on foreign commerce was presently being imposed. Statement of Facts The Lake Charles Harbor and Terminal District submitted in June 1986 an application to the FTZ Board pursuant to the Board’s regulations in 15 C.F.R. § 400.304 to designate as a special-purpose subzone the crude oil refinery of Plaintiff Conoco in Calcasieu Parish, Louisiana, adjacent to the Lake Charles port of entry. Another subzone application was filed in December 1987 on behalf of Plaintiff Citgo to designate the crude oil refinery facilities of Citgo at Lake Charles, Louisiana, as a special-purpose subzone. In response to the two applications, the FTZ Board issued two separate orders granting the special-purpose subzone status requested and imposed substantially identical conditions relating to the establishment of the two respective subzones. The conditions set forth in the separate Conoco and Citgo orders are as follows: (1) Foreign crude oil used as fuel for the refinery shall be dutiable. (2) [Conoco and Citgo, as the case may be] shall elect privileged foreign status on foreign crude oil and other foreign merchandise admitted to the subzone. (3) The U.S. Customs Service shall inform the Foreign-Trade Zones Board on or before July 1, 1991, that a satisfactory control system has been implemented so that the revenue can be fully protected;" } ]

[ { "docid": "21222654", "title": "", "text": "47 S.Ct. 478, 71 L.Ed. 787 (1927). . 299 F.2d 661, 662, cert. denied 371 U.S, 864, 83 S.Ct. 123, 9 L.Ed.2d 101 (1962). . 190 Md. 765, 58 A.2d 913, 917 (1948). . Evidently the jury clearly remembered Quarles’s unequivocal testimony that Leroy took the money from the filling station attendant while he, Quarles, held a gun on him. EDGERTON, Senior Circuit Judge (dissenting). In Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), a prosecution for conspiracy to violate the Prohibition Act, counsel for Shields and the prosecuting attorney jointly asked the judge in chambers, after the jury retired, to hold the jury in deliberation until it reached a verdict. The jury afterwards sent to the judge in chambers a note saying it found certain defendants guilty and certain others not guilty but was “unable to agree” as to Shields and two others. The judge in chambers then sent the following note to the jury: “The jury will have to find also whether Shields [and the two others] are guilty or not guilty.” 273 U.S. at 584, 47 S.Ct. 478, 71 L.Ed. 787. Shields was convicted. The Court of Appeals for the Third Circuit affirmed the conviction but the Solicitor General found no “satisfactory ground for opposing the petition for a writ of certiorari ...” 273 U.S. at 587, 47 S.Ct. at 479, 71 L.Ed. 787. The Supreme Court granted certiorari and reversed the conviction. The Supreme Court said: “These communications were not made in open court, and neither the petitioner Shields nor his counsel was present, nor were they advised of them. * * * The joint request to the court * * * did not include any agreement that the court should receive a communication from the jury and answer it without giving the defendant and his counsel an opportunity to be present in court to take such action as they might be advised * * *. Counsel, in making it, necessarily assumed, as they had a right to, that any communication from the jury would be made in open court," } ]

[ { "docid": "13637674", "title": "", "text": "claims that this ex parte conduct on the part of the district judge violated the requirement of Rule 43, Fed.R.Crim.P., that “[t]he defendant shall be present ... at every stage of the trial” and that it was in violation of Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed.2d 787 (1927), and more recently, of Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). See also United States v. United States Gypsum Co., _ U.S. _, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Unlike the facts in those cases, however, the jury did not solicit and the court did not give any ex parte instructions about the merits of the case or the manner of the jury’s deliberations. Although it may have been technically in error for the trial judge to have made even this limited response to the jury, the error was not under the circumstances prejudicial. As we held in United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2395, 40 L.Ed.2d 766 (1974), the rule requiring that a defendant be present at all stages of the trial must be considered with Rule 52(a), Fed.R.Crim.P., providing that harmless error is to be disregarded, citing United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 884, 27 L.Ed.2d 828 (1971), 409 U.S. 894 (1972); and Yates v. United States, 418 F.2d 1228 (6th Cir. 1969). Thus we held that a forbidden communication will not always be reversible and that the standard is whether there is “any reasonable possibility of prejudice.” 489 F.2d at 8, quoting Wade v. United States, 142 U.S.App.D.C. 356, 441 F.2d 1046, 1050 (1971). We cannot agree with appellant that the note to the jury was “tersely worded” or “coercive” and indeed, appellant concedes that taken alone, any error would not be reversible. He urges us, however, to consider it in the context of other events which later occurred in the course of the jury’s deliberations. Potentially more serious than the court’s ex" }, { "docid": "13637673", "title": "", "text": "that peremptory challenges are provided, not as a matter of constitutional requirement, but rather as an additional safeguard even where the danger of prejudice is not of constitutional proportions. That Giacalone was able to take advantage of the cushion provided by the exercise of peremptory challenges reflects not a denial of justice but the achievement of it under good rules designed for the purpose. III. JURY INSTRUCTIONS Giacalone’s final allegation of error concerns the actions of the trial court after the jury had retired to deliberate upon a verdict. After two and one-half days of deliberations, the jury delivered a note to the court which stated: After careful review of all of the evidence presented to us, we cannot come to a unanimous decision. We request your guidance in the subsequent procedure. The inquiry came at a time when neither the defense counsel nor the defendant was available and the court, five to ten minutes after the inquiry was received, delivered a note to the jury which read: Please continue your deliberations. Judge Joiner Giacalone claims that this ex parte conduct on the part of the district judge violated the requirement of Rule 43, Fed.R.Crim.P., that “[t]he defendant shall be present ... at every stage of the trial” and that it was in violation of Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed.2d 787 (1927), and more recently, of Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). See also United States v. United States Gypsum Co., _ U.S. _, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Unlike the facts in those cases, however, the jury did not solicit and the court did not give any ex parte instructions about the merits of the case or the manner of the jury’s deliberations. Although it may have been technically in error for the trial judge to have made even this limited response to the jury, the error was not under the circumstances prejudicial. As we held in United States v. Reynolds, 489 F.2d 4 (6th Cir. 1973), cert. denied, 416 U.S. 988," }, { "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": "17781158", "title": "", "text": "and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Fed.R.Crim.P. 43(a). In Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1 (1975), after some two hours of deliberation, the jury sent out a note inquiring if the judge would ‘“accept the Verdict — “Guilty as charged with extreme mercy of the Court.” ’ Without notifying the defendant or his counsel, the judge instructed the marshal who delivered the note ‘to advise the jury that the court’s answer was in the affirmative.’ ” 422 U.S. at 36, 95 S.Ct. at 2093. The Court held that Rule 43 was violated, obviously by the defendant’s absence during the interchange, and that the rule required that a note sent out by the jury “should have been answered in open court and ... petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded.” In Rogers the district court, as noted, did neither of these things, and instead answered the jury’s note by way of an oral relay via the marshal without informing the defendant or counsel. 422 U.S. at 36, 95 S.Ct. at 2093. The court stated that a violation of Rule 43 could be harmless error, but after considering the substance of the information in the judge’s answer and the manner in which the judge’s response was relayed to the jury, it would not hold the error harmless in Rogers’s case. 422 U.S. at 40, 95 S.Ct. at 2093. However, a crucial difference between Rogers and Rhodes’s ease is that Rhodes’s counsel was not only given an opportunity to be heard; he was present in chambers, contributed to the discussion, and favored the answer the judge gave. The narrow question presented in this case — whether the defendant, and not merely defense counsel, must be present when an answer to a jury question sent out during deliberations is formulated and given — is one which also is controlled by Rogers. In two pr e-Rogers cases, this circuit held that a procedure such" }, { "docid": "8793544", "title": "", "text": "were present. Only later did they learn of the jury’s note and, upon filing a handwritten motion, its substance. At a subsequent in-chambers conference, Bazarian and Renda moved for a mistrial and, alternatively, requested that the jury be reminded, as they had been the day before, that they unanimously must agree on which of the six objects of the conspiracy each defendant conspired to commit. The defendants did not argue, however, that the charge given by the court in response to the note was a misstatement of the law. The judge denied both requests. Twenty-seven hours later the jury returned its unanimous verdicts. Initially, we explicitly set forth the procedure that properly should be followed by a judge presented with a communication from a deliberating jury. That which follows is simply a restatement of established jurisprudence of which the district judge should have been aware. In Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), the Supreme Court, citing two of its early twentieth century cases and the Federal Rules of Criminal Procedure, stated that it was clear that a message from a jury should be answered in open court after counsel has been informed of its substance and has been given an opportunity to be heard. Id. at 39, 95 S.Ct. at 2094 (citing Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 479, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein State Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919); Fed.R.Crim.P. 43.). Accord United States v. McDuffie, 542 F.2d 236, 241 (5th Cir.1976) (“The procedure that should have been employed is well established. When a communication is received from the jury, counsel should be informed of its substance and afforded an opportunity to be heard before a supplemental charge is given.”). There is no justification, therefore, for deviating from this procedure in responding to this jury’s communication; the trial court erred by doing so. See Rogers, 422 U.S. at 40, 95 S.Ct. at 2095; McDuffie, 542 F.2d at 241. Though error was committed, reversal does not" }, { "docid": "15753416", "title": "", "text": "improper communication with the jury, particularly by an “authority figure” such as the court clerk. In Parker a bailiff stated in the presence of some jurors, during deliberations, that the defendant was guilty. Here the clerk expressed no opinion at all about the merits of the case. Parker is inappo-site. Defendants claim secondly they were deprived of their right to be present at a stage of the trial, in violation of Fed.R. Crim.P. 43(a), relying on cases which hold that a judge’s response to a jury’s communication “tantamount to a request for further instructions” must be made in the presence of the defendant or his counsel. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-2095, 45 L.Ed.2d 1 (1975); see, e. g., Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927). We need not decide whether the present request for transcripts is governed by these authorities involving requests for instructions. It was in any event error for the clerk himself to purport to rule on the request, this being a matter within the court’s discretion to grant or deny. United States v. Almonte, 594 F.2d 261, 265 (1st Cir. 1979); United States v. Pollak, 474 F.2d 828, 832 (2d Cir. 1973). The clerk should either have transmitted the request to the judge or suggested to the juror that he send a message to the judge through whatever channels were available. The clerk’s error, while not the fault of the judge personally, was nonetheless an error in the conduct of the trial which would have required reversal had it affected the defendants’ substantial rights. But we think the error was nonprejudicial. Only the testimony of one witness, Alex Mancone, had been transcribed by the time the juror conveyed his request to the clerk. As previously noted, Mancone was a key government witness whose testimony had been especially damaging to the defendants. Courts are usually hesitant to read just one witness’s testimony to the jury for fear it will be overemphasized and will result in a failure to consider the evidence as a whole." }, { "docid": "22957966", "title": "", "text": "be present at all stages of the proceedings. See Fed.R.Crim.P. 43(a); Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (reversible error to advise jury in response to jury request, without notifying defense counsel, that court would accept verdict of guilty “with extreme mercy of the Court”); United States v. Glick, 463 F.2d 491, 493 (2d Cir. 1972) (terming right an “unequivocal mandate”). Because an important right is involved, one with constitutional underpinnings, Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), private communications with the jury have been said to “create a presumption of prejudice.” United States v. Treatman, 524 F.2d 320, 323 (8th Cir. 1975); see United States v. Pfingst, 477 F.2d 177, 198 (2d Cir. 1973) (Government has burden of persuasion as to harmlessness to defendant of communication), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). This presumption may be overcome, however, by evidence showing lack of prejudice. United States v. Treatman, supra, 524 F.2d at 323; see Rogers v. United States, supra, 422 U.S. at 40, 95 S.Ct. 2091 (harmless error rule applies to private court-jury communications); United States v. Glick, supra, 463 F.2d at 493; United States v. Schor, 418 F.2d 26, 30 (2d Cir. 1969). The question could also be waived, as by the court’s procuring advance consent of counsel on both sides and of the defendants themselves. In the present posture of this case, we find it somewhat difficult to determine whether Judge Duffy’s private communications with a juror prejudiced the appellants in any way. No record whatsoever was made of the communications at the time. Some twelve hours later, the judge in camera, without the presence of any counsel or of the juror, dictated his recollection of the discussion he had had with the juror; this transcript was ordered sealed by the court. Seven months later, upon a request by this court to the district court clerk’s office for the sealed transcript, it was discovered that the document had been lost (apparently either in that office or the" }, { "docid": "13987448", "title": "", "text": "The majority acknowledges that the judge erred in not informing counsel of the jury’s communications and in not responding to the questions. Unfortunately the majority holds these errors to be harmless. But they were not harmless. The Supreme Court in Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975), reiterated the requirement laid down in Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), that counsel be informed of inquiries from the jury such as were made here and be given an opportunity to be heard before the judge responds. In Rogers, Mr. Chief Justice Burger wrote: As in Shields, the communication from the jury in this case was tantamount to a request for further instructions. However, we need not look solely to our prior decisions for guidance as to the appropriate procedure in such a situation. Federal Rule Crim.Proc. 43 guarantees to a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. 422 U.S. at 39, 95 S.Ct. at 2095. It is true that the Chief Justice also commented that a violation of Fed.R.Crim.P. 43 may be harmless error in some situations, citing Fed.R.Crim.P. 52(a). However, Rule 52(a) provides that, “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” How can it be said that the substantial rights of the defendant here were not affected by the judge’s not informing counsel of the jury’s communications to him and by his not responding to their inquiries? The majority strains to construct an apology for the judge’s error, but at best its hindsight effort is speculation and at worst a sophism. For example, the majority speculates that" }, { "docid": "320242", "title": "", "text": "Practice and Procedure, § 384. He insists, however, that once the jury has been selected and sworn it is error for the court to excuse a juror without “notice to the defendant or his counsel and without explanation . . . .” Rule 43, Fed.R.Crim.P., provides: “The defendant shall be present ... at every stage of the trial including the impaneling of the jury . . . except as otherwise provided by these rules.” The Supreme Court has recently dealt with the matter of communications between a jury and the trial judge and concluded that messages from a jury should be answered in open court with an opportunity for counsel to be heard before the court responds. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). The holding was based upon the requirements of Rule 43 and cases decided prior to the effective date of the rules. In Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919), a civil action, the Court held that the parties have the 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.” In Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 71 L.Ed. 787 (1927), the Court noted that a fortiori, the same rule would apply in a criminal case. We hold that it was error for the District Judge to engage in discussions with members of the jury after it was impaneled and to consider requests for excuses out of the presence of the defendant and without giving notice to defense counsel. This does not preclude the parties and counsel from agreeing to in camera consideration of requests to be excused, but the decision as to whether this may be done is that of the parties, not the court. The defendant should have an opportunity to object to requests for excuses from the jury and to make a record of the proceedings. This holding does not affect the discretion" }, { "docid": "17781157", "title": "", "text": "three of the narcotics and firearms offenses were all being committed at the same instant, and Rhodes would leave Charlottesville with guns and come back with drugs, the case is so obviously one for joinder under Fed.R.Crim.P. 8(a), we decline to find necessary a limiting instruction absent request or patent prejudice, neither of which was present here. IV Rhodes’s final contention is that, although his counsel was present and agreed to the response, the district court erred in discussing the jury’s question and formulating the response in his absence. Rhodes’s claim is governed by Rule 43 of the Federal Rules of Criminal Procedure, which codified the defendant’s right to be present at every stage of the trial under the Fifth and Sixth Amendments. See United States v. Camacho, 955 F.2d 950, 952 (4th Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 571, 126 L.Ed.2d 470 (1993). Rule 43(a) provides: “The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.” Fed.R.Crim.P. 43(a). In Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-95, 45 L.Ed.2d 1 (1975), after some two hours of deliberation, the jury sent out a note inquiring if the judge would ‘“accept the Verdict — “Guilty as charged with extreme mercy of the Court.” ’ Without notifying the defendant or his counsel, the judge instructed the marshal who delivered the note ‘to advise the jury that the court’s answer was in the affirmative.’ ” 422 U.S. at 36, 95 S.Ct. at 2093. The Court held that Rule 43 was violated, obviously by the defendant’s absence during the interchange, and that the rule required that a note sent out by the jury “should have been answered in open court and ... petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded.” In Rogers the district court, as noted, did neither of these things, and instead answered" }, { "docid": "22572019", "title": "", "text": "afforded counsel their first opportunity to inspect the second and third notes. After reading the notes, neither counsel requested further instructions. Approximately one-half hour later, the jury returned verdicts of guilty on both counts. It is settled law that messages from a jury should be disclosed to counsel and that counsel should be afforded an opportunity to be heard before the trial judge responds. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975); United States v. Robinson, 560 F.2d 507, 516 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S.Ct. 1451, 55 L.Ed.2d 496 (1978). See United States v. Glick, 463 F.2d 491 (2d Cir. 1972); United States v. Schor, 418 F.2d 26 (2d Cir. 1969). The proper practice should include these steps. (1) The jury’s inquiry should be submitted in writing. This is the surest way of affording the court and counsel an appropriate opportunity to confer about a response. (2) Before the jury is recalled, the note should be marked as a court exhibit and be read into the record in the presence of counsel and the defendant. This avoids any later claim by the defendant that he remained unaware of the note’s content, despite his counsel’s knowledge of it. (3) Counsel should be afforded an opportunity to suggest appropriate responses. During this colloquy, it is also helpful for the judge to inform counsel of the substance of his proposed response, or even to furnish a written text of it, if available. Cf. Fed.R.Crim.P. 30, requiring the trial judge to inform counsel of the disposition of proposed requests to charge prior to summations. (4) After the jury is recalled, the trial judge should generally precede his response by reading into the record in their presence the content of any note concerning substantive inquiries. This assures that all jurors appreciate the question to which the response is directed, in the event the note was not discussed among all the jurors. It also provides an opportunity to correct any failure by the foreman to convey accurately the inquiry of one" }, { "docid": "13987424", "title": "", "text": "counsel the next day that “the answer to that [inquiry] was ‘No,’ because I will not become the thirteenth juror in this case, and I should not invade the province of the jury, which I did not do. The answer to the question to the jury, carried to them by the deputy United States Marshal, was to ‘continue to deliberate.’ ” The jury spent the night at a hotel, and the next morning sent another note to the court: “Judge Lynch: The counts in the indictment are related to one another, some more than others. For example, count 2 is related to count five. In this respect, if we find the defendant guilty on count two and on count three, must we also find him guilt on count one? Spencer R. Sawyer, Foreman.” The court replied that the jury should “continue to deliberate.” Ten minutes later the jury reached a verdict. We think Clavey’s contentions that the court should have advised counsel of the jury’s inquiries and made an effort to respond to them have merit. Federal Rule of Criminal Procedure 43 guarantees a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” This guarantee includes the right to be present when communications are made to a deliberating jury. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). As the Supreme Court said in Rogers, “Cases interpreting the Rule make it clear . . . that the jury’s message should [be] answered in open court and that [defense] counsel should [be] given an opportunity to be heard before the trial judge respondfs].” 422 U.S. at 39, 95 S.Ct. at 2095. Moreover, the Supreme Court has held that “[discharge of the jury’s responsibility . depend[s] on discharge of the judge’s responsibility to give the jury the required" }, { "docid": "13987425", "title": "", "text": "merit. Federal Rule of Criminal Procedure 43 guarantees a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” This guarantee includes the right to be present when communications are made to a deliberating jury. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919). As the Supreme Court said in Rogers, “Cases interpreting the Rule make it clear . . . that the jury’s message should [be] answered in open court and that [defense] counsel should [be] given an opportunity to be heard before the trial judge respondfs].” 422 U.S. at 39, 95 S.Ct. at 2095. Moreover, the Supreme Court has held that “[discharge of the jury’s responsibility . depend[s] on discharge of the judge’s responsibility to give the jury the required guidance by a lucid statement of the relevant legal criteria. When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy.” Bollenbach v. United States, 326 U.S. 607, 612-13, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). The jury’s final two questions, particularly the last one, indicate that the jury was encountering difficulty with the instructions in this relatively complex case. The trial judge’s perfunctory answers were clearly inadequate responses to the jury’s inquiries. See United States v. Harris, 388 F.2d 373, 377 (7th Cir. 1967); United States v. Bolden, 169 U.S.App.D.C. 60, 67-68, 514 F.2d 1301, 1308-09 (1975). At a minimum, the judge should have reread whatever portions of the original instructions given to the jury that the jury requested or that related to its inquiry. See United States v. Papia, 560 F.2d 827, at 843-844 (7th Cir. 1977). While we agree that the court erred in not informing counsel of the jury’s inquiries and in not making a reasonable effort to clear up the jury’s difficulties, we" }, { "docid": "15753415", "title": "", "text": "room to inform the jurors that one juror was ill. At that time, a juror asked the clerk “for the transcripts of the trial.” The clerk responded “that they wouldn’t be allowed.” The conversation apparently ended there, and the clerk did not inform the court or counsel of the juror’s request. Defense counsel informed the court by letter of this event as soon as they learned of it. The court held a hearing at which the clerk recounted the event. The court treated counsel’s letter as a motion “to set aside the verdict of the jury” and denied the motion without giving reasons. (In an earlier colloquy with counsel, the judge would not characterize the incident as “from the court,” apparently by way of emphasizing he had known nothing of it.) The court denied Patterson’s motion for a new trial, again without stating reasons. Defendants argue that this event warrants reversal on two grounds. First, citing Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966), they claim “presumptive prejudice” arising from improper communication with the jury, particularly by an “authority figure” such as the court clerk. In Parker a bailiff stated in the presence of some jurors, during deliberations, that the defendant was guilty. Here the clerk expressed no opinion at all about the merits of the case. Parker is inappo-site. Defendants claim secondly they were deprived of their right to be present at a stage of the trial, in violation of Fed.R. Crim.P. 43(a), relying on cases which hold that a judge’s response to a jury’s communication “tantamount to a request for further instructions” must be made in the presence of the defendant or his counsel. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094-2095, 45 L.Ed.2d 1 (1975); see, e. g., Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927). We need not decide whether the present request for transcripts is governed by these authorities involving requests for instructions. It was in any event error for the clerk himself to purport to rule on the request," }, { "docid": "12583954", "title": "", "text": "478, 71 L.Ed. 787 (1927) (holding that “[w]here a jury has retired to consider of its verdict, and supplementary instructions are required ... they ought to be given either in the presence of counsel or after notice and an opportunity to be present”). In the case before us, the jury note was not marked as an exhibit, and counsel was not given an opportunity to suggest an appropriate rejoinder before the trial judge answered the jury’s questions. Despite the supplemental instructions being given in a manner contrary to circuit practice, a trial court’s error will not require reversal if the error is harmless. See United States v. Parent, 954 F.2d 23, 25 (1st Cir.1992) (stating that “a trial court’s error in failing seasonably to inform counsel about a jury note does not require reversal if the error is benign”). This circuit has not yet taken a position on which harmless error standard applies when a trial court fails to disclose or discuss a note from a deliberating jury. See Parent at 25, n. 5; Maraj, 947 F.2d at 526. Either the stricter standard, asking whether the error was harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), or the more lenient standard, asking whether the error had substantial and injurious effect or influence vis-a-vis the judgment, see Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), applies. Yet again, we need not decide which standard applies as the error in this case was harmless under either standard. The trial judge’s failure to allow counsel to suggest an appropriate rejoinder was harmless beyond a reasonable doubt because counsel was present when the jury’s questions were read and answered. Cf. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (harmful error for court to respond to a jury note without informing counsel of the note); Parent, 954 F.2d at 27 (same); United States v. Neff, 10 F.3d 1321, 1322 (7th Cir.1993) (same). Defense counsel thus had the opportunity to" }, { "docid": "22914988", "title": "", "text": "between the two. The judge suggested telling the jury, “Sorry, it is not possible to furnish the requested testimony.” The defendants’ lead counsel agreed, provided the judge added, “Continue with your deliberations.” Reynosa’s counsel did not demur. The defendants were not present during this exchange and the judge did not reconvene the jury. Instead he sent the following note to the jury: “Sorry, it is not possible to furnish the requested information. Please continue with your deliberations. Judge Foreman.” Reynosa argues that his right to be present throughout the trial was infringed because he was not in the courtroom when the judge replied to the question that the jury had raised, and in addition that the judge’s reply prejudiced Reynosa’s case by implying that there had been testimony about a conversation between him and Silverstein in August 1981 about murdering Chappelle. Reynosa’s counsel did not object either to his client’s absence from the courtroom or to the judge’s reply to the jury’s question; necessarily therefore Reynosa is arguing that these were plain errors. See Fed.R.Crim.P. 52(b). Rule 43 of the Federal Rules of Criminal Procedure requires that the defendant be present (if he desires) “at every stage of the trial,” and this has been held to include the giving of a supplementary instruction or other communication with the jury after it has begun deliberating. Rogers v. United States, 422 U.S. 35, 39, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975). But the requirement is subject to the doctrine of harmless error. Id. at 40, 95 S.Ct. at 2095; United States v. Burns, 683 F.2d 1056, 1059 (7th Cir.1982); United States v. Clavey, 565 F.2d 111, 119 (1977), modified en banc on other grounds, 578 F.2d 1219 (7th Cir.1978) (per curiam); Ware v. United States, 376 F.2d 717, 719 (7th Cir.1967); 3A Wright, Federal Practice and Procedure: Crim.2d § 724 at p. 31 (1982). It is most unlikely that a different reply to the jury’s question would have been formulated if the defendants had been present. It was not the sort of question on which counsel would be likely to consult" }, { "docid": "8793545", "title": "", "text": "of Criminal Procedure, stated that it was clear that a message from a jury should be answered in open court after counsel has been informed of its substance and has been given an opportunity to be heard. Id. at 39, 95 S.Ct. at 2094 (citing Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 479, 71 L.Ed. 787 (1927); Fillippon v. Albion Vein State Co., 250 U.S. 76, 81, 39 S.Ct. 435, 436, 63 L.Ed. 853 (1919); Fed.R.Crim.P. 43.). Accord United States v. McDuffie, 542 F.2d 236, 241 (5th Cir.1976) (“The procedure that should have been employed is well established. When a communication is received from the jury, counsel should be informed of its substance and afforded an opportunity to be heard before a supplemental charge is given.”). There is no justification, therefore, for deviating from this procedure in responding to this jury’s communication; the trial court erred by doing so. See Rogers, 422 U.S. at 40, 95 S.Ct. at 2095; McDuffie, 542 F.2d at 241. Though error was committed, reversal does not necessarily follow. Rather, we must determine whether this infringement on the appellants’ fundamental rights to personal presence and assistance of counsel at all critical stages of their trial is harmless. Rushen v. Spain, 464 U.S. 114, 118-19, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267 (1983); Rogers, 422 U.S. at 40, 95 S.Ct. at 2095. We conclude that Bazarian and Renda suffered no actual prejudice as a result of the mishandling of the jury communication; consequently, the error is harmless. The factual scenario presented here is not unique; this court has reviewed for prejudice other cases in which the trial court, in response to a jury communication, delivered supplemental instructions without notifying or consulting counsel, and in the defendant’s absence. In United States v. McDuffie, 542 F.2d 236 (5th Cir.1976), the trial court, on its own initiative and without receiving input from counsel, heeded the jury’s request and reinstructed on the meaning of the terms “control” and “possession.” Id. at 238. Similarly, the trial judges in United States v. Breedlove, 576 F.2d 57 (5th Cir.1978), and" }, { "docid": "1431388", "title": "", "text": "impaneling, the Sixth Amendment Confrontation Clause is inapplicable. The Due Process Clause of the Fourteenth Amendment is also inapplicable because it restrains actions taken by the states, whereas defendants were tried in federal court. . Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), are often incorrectly cited for the proposition that there is a constitutional right to presence during jury selection. Hopt concerned a violation of a statute which outlined a certain procedure for determining challenges for cause, 110 U.S. at 576, 4 S.Ct. at 203. Lewis reversed a conviction because the defendant was not present until after the jury had been selected. 146 U.S. at 375-76, 13 S.Ct. at 138. The often quoted dictum of Lewis that “after indictment found, nothing shall be done in the absence of the prisoner,” id. at 372, 13 S.Ct. at 137, was expressly described by Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 117, 54 S.Ct. 330, 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" }, { "docid": "7917197", "title": "", "text": "U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). The dissenting views of Mr. Justice sharply focused on the racial issue which arose in a trial where a white security officer had been the of assault by Ross and other young negroes. See 414 U.S. 1082-1083, 94 S.Ct. 599. The majority in its denial of certiorari could not possibly have failed to realize the impact of the dissent. Floyd’s reliance upon the Aldridge and Ham cases definitely is misplaced. We are satisfied that the views we have correctly reflect applicable law which indicates the course to be followed here. Other circuits after consideration of the problem have taken a similar See, e. g., United States v. Walker, 491 F.2d 236, 239 (CA 9), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974) and United States v. Grant, 494 F.2d 120, 122-123 (CA 2 1974). We reject Floyd’s claim of error in the under consideration. II C We now reach Floyd’s contention that the trial judge fatally erred when, in the absence of counsel the judge undertook to respond to the jury’s request for instructions. Details presently will be discussed. Of course, it is so that an accused is entitled to be present at every stage of his trial, Fed.Rule Crim.Proc. 43. Especially since Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), the courts have frowned upon communications between judge and jury in the absence of the defendant and his counsel. In usual course, a jury’s message should be an-swered in open court, with an opportuni-ty afforded to counsel to be heard before the trial judge undertakes to respond. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). However, a failure to comply with the requirements of Rule 43 does not call automatically for reversal. The situation requires consideration in light of Fed.Rule Crim.Proc. 52(a), and so there “may in some circumstances be harmless error,” Rogers v. United States, supra, 422 U.S. at 40, 95 S.Ct. at 2095. The “circumstances” to be con-sidered will be, inter alia," }, { "docid": "7917198", "title": "", "text": "counsel the judge undertook to respond to the jury’s request for instructions. Details presently will be discussed. Of course, it is so that an accused is entitled to be present at every stage of his trial, Fed.Rule Crim.Proc. 43. Especially since Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), the courts have frowned upon communications between judge and jury in the absence of the defendant and his counsel. In usual course, a jury’s message should be an-swered in open court, with an opportuni-ty afforded to counsel to be heard before the trial judge undertakes to respond. Rogers v. United States, 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975). However, a failure to comply with the requirements of Rule 43 does not call automatically for reversal. The situation requires consideration in light of Fed.Rule Crim.Proc. 52(a), and so there “may in some circumstances be harmless error,” Rogers v. United States, supra, 422 U.S. at 40, 95 S.Ct. at 2095. The “circumstances” to be con-sidered will be, inter alia, “the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed,” id. 422 U.S. at 40, 95 S.Ct. at 2095. The trial judge might there have induced unanimity, said the Court, by giving members of the jury who had previously hesitated about reach-ing a guilty verdict the impression that the recommendation might be an acceptable compromise, Id. The judge had responded to the jury’s inquiry in the absence of the accused and his counsel. Moreover, the judge had quite erroneously failed to instruct that the jury had no sentencing function and should reach its verdict without re-gard to what sentence might be imposed. The cumulative errors were seen to be “fraught with potential prejudice.” at 41, 95 S.Ct. 2091. We here take up what happened in the instant case. The jury had retired to consider its verdict at 4:30 p.m. on April 5, 1973. At six p.m., no verdict having been reached, the jury was released with directions to resume deliberations at 9 a.m. the following day," } ]

[ { "docid": "23437719", "title": "", "text": "liability and damages to be tried in a reverse bifurcation format. The trial court has considerable discretion in determining how a trial is to be conducted. Blair v. Eagle-Picher Indus., Inc., 962 F.2d 1492, 1500 (10th Cir.), cert. denied, - U.S. -, 113 S.Ct. 464, 121 L.Ed.2d 372 (1992). We therefore will not disturb the trial court's bifurcation order absent an abuse of discretion. Easton v. City of Boulder, 776 F.2d 1441, 1447 (10th Cir.1985), cert. denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). A court may order a separate trial of any claim or separate issue “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” Fed. R.Civ.P. 42(b). Bifurcation is not an abuse of discretion if such interests favor separation of issues and the issues are clearly separable. See O’Dell v. Hercules Inc., 904 F.2d 1194, 1202 (8th Cir.1990). Regardless of efficiency and separability, however, bifurcation is an abuse of discretion if it is unfair or prejudicial to a party. See Hines v. Joy Mfg. Co., 850 F.2d 1146, 1152 (6th Cir.1988); Martin v. Bell Helicopter Co., 85 F.R.D. 654, 658 (D.Colo.1980). A. Convenience and Economy “While separation of issues for trial is not to be routinely ordered, it is important that it be encouraged where experience has demonstrated its worth.” Fed.R.Civ.P. 42(b) advisory committee’s note. Courts have often used bifurcation to deal with massive product liability litigation, especially asbestos cases. See, e.g., Campolongo v. Celotex Corp., 681 F.Supp. 261, 262 (D.N.J.1988) (“The magnitude of the [asbestos caseload] problem invites the employment of extraordinary case management techniques provided they equally serve the litigants, the court and the ends of justice.”). In fact, courts have commonly used reverse bifurcation in asbestos cases. See, e.g., Borman v. Raymark Indus., 960 F.2d 327, 329 (3d Cir.1992); In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 940, 944 (E. & S.D.N.Y.1992), rev’d, 995 F.2d 343 (2d Cir.1993) and rev’d sub nom. Malcolm v. National Gypsum Co., 995 F.2d 346 (2d Cir.1993); Hughes v. Owens-Corning Fiberglas Corp., No. 88-3374," } ]

[ { "docid": "3515274", "title": "", "text": "issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of. trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. Bifurcation of issues of liability from those relating to damages is an obvious application of Rule 42(b). Logically, liability must be resolved before damages may be considered. Often the evidence relevant to the two issues is wholly unrelated. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2390 (1971). On review of a final order, “[t]he appellate court will leave a great deal to the discretion of the trial court, but there has been a reversal when the appellate court thought the separation was prejudicial to a party.” Id. at § 2392. In Moss v. Associated Transport, Inc., 344 F.2d 23, 26 (6th Cir.1965), construing a prior version of Rule 42(b), this court stated: We add the caveat expressed in Frasier v. Twentieth Century-Fox Film Corp., 119 F.Supp. 495, 497 (D.Neb.1954) that separation of issues ‘should be resorted to only in the exercise of informed discretion and in a case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice’ and observe further that ‘[a] paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.’ In the instant case, appellant argues that the extent of the injury is relevant to the question of whether a manufacturer was negligent in putting its product on the market. This argument is apparently based on the familiar Learned Hand formula for determining liability. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.1947). In Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir.1973), a personal injury action which was bifurcated similarly to the instant case, however, this court rejected the appellant’s argument that she was prejudiced by the fact that the jury was unable to consider evidence" }, { "docid": "7976570", "title": "", "text": "on defendants by compelling the examination of expert witnesses and government officials on four occasions rather than one, (3) reduced the likelihood of an impartial jury for the second, third and fourth plaintiff groups, and (4) hampered defendants’ ability to portray the relevant events to the jury in a comprehensive fashion. On October 15, the court emphatically rejected these concerns in a written ruling: The considerations alleged by Defendants as to the fact that they would have to present evidence at four different occasions is of secondary importance. “A paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Acevedo-Garcia v. Vera-Monroig, 204 F.R.D. 26, 30 (D.P.R.2001) (quoting In re Bendectin Litigation, 857 F.2d 290, 308 (6th Cir.1988)). Defendants lodge two objections to the severance on appeal. First, they argue that the district court’s refusal to try the claims of all eighty-two plaintiffs at once was inappropriate and unfairly prejudicial. We can dispense with this argument quickly. The decision to separate parties or claims is a case management determination “peculiarly within the discretion of the trial court,” Gonzalez-Marin v. Equitable Life Assurance Socy., 845 F.2d 1140, 1145 (1st Cir.1988), and courts of appeals accord broad latitude to district courts in this area. Id.; Applewhite v. Reichold Chems., Inc., 67 F.3d 571, 574 (5th Cir.1995); New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d Cir.1988). We would note, however, that we need not rest our affirmance on this deferential standard of review—the circumstances of this case compel the conclusion that the division of plaintiffs was a legitimate and feasible means of efficiently conducting this unwieldy litigation. Defendants’ second objection is more troublesome, and implicates the particular procedural device employed by the district court to quarter the proceedings. “Two types of severances or separations of claims are contemplated by the Federal Rules of Civil Procedure—one within the action itself, the other resulting in a second, or new action.” Official Comm. of Unsecured Creditors v. Shapiro, 190 F.R.D. 352," }, { "docid": "14657068", "title": "", "text": "damages. The Court construed all nine issues in dispute in accordance with Plaintiffs proffered construction. While it is true, as Defendant contends, that a judgment in favor of Bunn-O-Matic would obviate the need for discovery on the issue of damages, this argument can be made in every case. However, this Court will not preclude a plaintiff from proceeding in the normal course of a trial and present evidence on both liability and damages merely because a defendant may ultimately prevail. Keyes Fibre Co. v. Packaging Corp. of Am., 763 F.Supp. 374, 376 (N.D.Ill.1991). 2. Balancing The Equities Weigh In Plaintiffs Favor In balancing the equities of this case, the balancing weighs in Plaintiffs favor. There is no reason to believe that bifurcating the case would lead to judicial economy, be more expeditious, or reduce prejudice. Defendant offers no evidence regarding time or expenses that would be saved. Separate trials, in fact, would be highly prejudicial to Plaintiff and cause unnecessary delay and expense. The Court is mindful of the fact that this is an individual plaintiff going up against a corporation, which, in all probability, has the resources to absorb expenses and delays more easily than the Plaintiff. Having already determined that there is a strong possibility that a jury will need to hear issues on damages, an order of separate trials and separate discovery periods will only add un necessary and “considerable delay.... An unreasonable delay in a case’s resolution amounts to prejudice to the one opposing separation. It is clearly not in the public interest.” Laitram, 791 F.Supp. at 116. In the event that liability is found, two separate trials with two separate juries at remote times would not serve judicial economy. Home Elevators, 933 F.Supp. at 1092. “A single trial generally tends to lessen the delay, expense, and inconvenience to all concerned,” which is why separate cases are the exception. THK, 29 U.S.P.Q.2d at 2024, 151 F.R.D. 625. In addition, there are overlapping issues between the damages and liabilities phases of a trial, which weigh in favor of a single trial. Overlapping issues would require evidence to" }, { "docid": "23188370", "title": "", "text": "administration that is to be controlling, rather than the wishes of the parties. The piecemeal trial of separate issues in a single suit is not to be the usual course. It should be resorted to only in the exercise of informed discretion when the court believes that separation will achieve the purposes of the rule. Id. at 279 (footnotes omitted). Neither Rule 42(b) nor the textual elaboration cited gives any precise guidelines for the trial judge in considering the propriety of ordering separate trials, probably because of the wide variety of circumstances in which it might come into play. Consequently, courts have adopted a case-by-case approach. “Essentially, the question is one that seems to depend on the facts of each case, a matter to be determined by the trial judge exercising a sound discretion.” Southern Ry. Co. v. Tennessee Valley Authority, 294 F.2d 491, 494 (5th Cir.1961). “In deciding whether one trial or separate trials will best serve the convenience of the parties and the court, avoid prejudice, and minimize expense and delay, the major consideration is directed toward the choice most likely to result in a just final disposi tion of the litigation.” In re Innotron Diagnostics, 800 F.2d 1077, 1084 (Fed.Cir.1986) (citation omitted). Courts, including our own, have measured trial court decisions to try issues separately by whether fairness was advanced in the particular case: We add the caveat expressed in Frasier v. Twentieth Century-Fox Film Corp., 119 F.Supp. 495, 497 (D.Neb.1954) that separation of issues “should be resorted to only in the exercise of informed discretion and in case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice” and observe further that “[a] paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Baker v. Waterman S.S. Corp. 11 F.R.D. 440, 441 (S.D.N.Y.1951). Moss v. Associated Transport Inc., 344 F.2d 23, 26 (6th Cir.1965). In our case this same test applies to whether the" }, { "docid": "15481230", "title": "", "text": "Of course, the Court could delay the disclosure of such information until absolutely necessary, by bifurcating this litigation. For reasons which follow, the Court declines to bifurcate this litigation in the manner suggested by Defendants (i.e., a liability trial followed by discovery concerning the Defendants’ finances, if the Plaintiff prevails on liability, and, then, a damages trial); however, it will order separate trials on liability and damages, in a fashion it deems proper. The two trials will be heard by the same jury, and the damages trial will begin within a day or two of the completion of the liability trial, if one or more or all of the Defendants are found to be liable. Discovery on Defendants’ finances will be ordered provided within thirty (30) days, subject to a properly worded protective order, in order that there will be no delay in the commencement of the second trial, if same be necessary. The Court begins by setting forth the standards which must be applied in order to decide whether to order separate trials on liability and damages. Bifurcation is governed by Rule 42(b) of the Federal Rules of Civil Procedure, which provides: (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or thirdparty claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. In Martin v. Heideman, 106 F.3d 1308 (6th Cir.1997), the Sixth Circuit reiterated that “[bifurcation orders are reviewed for abuse of discretion, with the court required to con sider the potential prejudice to the parties, the possible confusion of the jurors, and the resulting convenience and economy.” Id. at 1311. See also, In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983)." }, { "docid": "4428551", "title": "", "text": "of emotional distress, abuse of process, negligence and gross negligence, is hereby denied. 2. Motion to Sever Plaintiff has requested that the Court sever, pursuant to Fed.R.Civ.P. 42(b) or 20(b), the § 1983 (the “Monell”) claim against the City. The Court has broad discretion to order separate trials to avoid delay or prejudice. Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363 (2d Cir.1988); United States v. 499.472 Acres of Land More or Less, 701 F.2d 545 (5th Cir.1983); Fed.R.Civ.P. 42(b) (court may order separate trials “in furtherance of convenience or to avoid prejudice”); Fed.R.Civ.P. 20(b) (court “may order separate trials or make other orders to prevent delay or prejudice”). A Court may order separate trials in order to (1) avoid prejudice; (2) provide for convenience; or, (3) expedite the proceedings and be economical. United States v. International Business Machines Corp., 60 F.R.D. 654, 657 (S.D.N.Y.1973). Only one of these conditions need be met for the Court to order a separate trial. In a complex case with complex issues, justice is often best served if issues are separated. See, e.g., Organic Chemicals, Inc. v. Carroll Products, Inc., 86 F.R.D. 468, 469 (W.D.Mich.1980). Prejudice to Defendant In addressing the issue of prejudice, the courts have usually been concerned with the effect that trying several issues will have on a jury. Prejudice, for instance, may occur when evidence is admissible only on a certain issue, and it is feared that the party may be prejudiced in the minds of the jury. See, e.g., Anthony v. Aetna Life and Casualty Company, 60 F.R.D. 101 (N.D.Ill.1973); Turner v. Transportacion Maritima Mexicana, 44 F.R.D. 412 (E.D.Pa.1968). See also Larsen v. Powell, 16 F.R.D. 322 (D.Colo.1954) (knowledge of insurance might prejudice the jury); Baker v. Waterman S.S. Corp., 11 F.R.D. 440 (S.D.N.Y.1951) (gruesome nature of injuries might prejudice the jury). In the present instance, there is a danger that evidence admissible on the issues relating to conduct by the City or Officer Cohen will “contaminate” the mind of the finder of fact in its consideration of the liability of the other defendant. For example, evidence concerning" }, { "docid": "10888757", "title": "", "text": "afforded to a party if bifurcation is granted? 9. Will management of trial, delineation of issues, and clarity of factual questions be substantially enhanced by bifurcation? 10. Will bifurcation assist efficient judicial administration of the case? See, e. g. United Air Lines v. Wiener, 286 F.2d 302, 306 (9th Cir.), cert. denied 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384 (1961); Washington Whey Co. v. Fairmont Foods Co., 72 F.R.D. 180 (D.Nev.1976); Payton v. Abbott Labs, 83 F.R.D. 382, 394-395 (D.Mass.1979). II. “[T]he decision to grant or deny separate trials under . . Rule 42(b) is one committed to the sound discretion of the trial court . . .” Warner v. Rossig-nol, 513 F.2d 678, 684 (1st Cir. 1975). Accord, In re Master Key Antitrust Litigation, 528 F.2d 5, 14 (2d Cir. 1975); Garber v. Randeli, 477 F.2d 711 (2d Cir. 1973). Separate trial of separate issues “must be grounded upon a clear understanding between court and counsel of the issue or issues involved in each phase and what proof will be required to pass from one phase to the next.” State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 319 (5th Cir. 1978), quoting Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir. 1976) (footnote omitted). See, e. g., Warner v. Rossignol, 513 F.2d 678, 684 (1st Cir. 1975); Moss v. Associated Transport, Inc., 344 F.2d 23, 26 (6th Cir. 1965); United States v. International Business Machines Corp., 60 F.R.D. 654, 657 (S.D.N.Y.1973). While economy and convenience may properly be considered in the decision to bifurcate, neither is the ultimate objective. “A paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Baker v. Waterman, 11 F.R.D. 440 (S.D.N.Y.1951). See, also, Moss v. Associated Transport, Inc., supra. However, “it is the interest of efficient judicial administration which is to be considered, rather than the wishes of the parties.” 9 Wright & Miller, Federal Practice and Procedure § 2388" }, { "docid": "4428552", "title": "", "text": "issues are separated. See, e.g., Organic Chemicals, Inc. v. Carroll Products, Inc., 86 F.R.D. 468, 469 (W.D.Mich.1980). Prejudice to Defendant In addressing the issue of prejudice, the courts have usually been concerned with the effect that trying several issues will have on a jury. Prejudice, for instance, may occur when evidence is admissible only on a certain issue, and it is feared that the party may be prejudiced in the minds of the jury. See, e.g., Anthony v. Aetna Life and Casualty Company, 60 F.R.D. 101 (N.D.Ill.1973); Turner v. Transportacion Maritima Mexicana, 44 F.R.D. 412 (E.D.Pa.1968). See also Larsen v. Powell, 16 F.R.D. 322 (D.Colo.1954) (knowledge of insurance might prejudice the jury); Baker v. Waterman S.S. Corp., 11 F.R.D. 440 (S.D.N.Y.1951) (gruesome nature of injuries might prejudice the jury). In the present instance, there is a danger that evidence admissible on the issues relating to conduct by the City or Officer Cohen will “contaminate” the mind of the finder of fact in its consideration of the liability of the other defendant. For example, evidence concerning a de facto policy encouraging discrimination of the City, or that the City failed to train adequately its officers, could prejudice the jury in its determination of the culpability of defendant Cohen based on the specific incident involving plaintiff. Likewise, if the jury determines that Officer Cohen is culpable this might unfairly influence its determination of whether the City had a de facto policy leading to discriminatory treatment. Ease of Adjudication Additionally, separate trials in this instance would further convenience and be conducive to expedition and economy. A separate trial that disposes of one charge or establishes a necessary element of a second charge promotes ease of adjudication. United States v. International Business Machines Corp., 60 F.R.D. 654, 657 (S.D.N.Y.1973). In the present case, both the state law and the § 1981 claims against the City rest solely on vicarious liability theories. The City has conceded that Officer Cohen was employed by the City and was acting within the scope of his official duties at all relevant times. City’s Answer ¶ 13. The trial of" }, { "docid": "3515275", "title": "", "text": "separation of issues ‘should be resorted to only in the exercise of informed discretion and in a case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice’ and observe further that ‘[a] paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.’ In the instant case, appellant argues that the extent of the injury is relevant to the question of whether a manufacturer was negligent in putting its product on the market. This argument is apparently based on the familiar Learned Hand formula for determining liability. See United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.1947). In Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir.1973), a personal injury action which was bifurcated similarly to the instant case, however, this court rejected the appellant’s argument that she was prejudiced by the fact that the jury was unable to consider evidence respecting her injuries in making its findings on the question of liability. We noted that “[s]uch consideration of evidence not related to the question of liability appears to be a type of prejudice which is to be avoided by separating the issues of liability and damages under Rule 42(b).” Id. Appellant cites to no cases, nor have we found any, in which Kentucky has adopted the formula for liability urged by appellant in this case. Therefore, Crummett is controlling, and we hold that the district court did not abuse its discretion in bifurcating this case on the issues of liability and damages. C. Federal Rule of Civil Procedure 26(e) provides as follows: A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows: (1) A party is under a duty seasonably to supplement his response with respect to any question directly addressed to (A) the identity and location of persons having knowledge" }, { "docid": "23188371", "title": "", "text": "consideration is directed toward the choice most likely to result in a just final disposi tion of the litigation.” In re Innotron Diagnostics, 800 F.2d 1077, 1084 (Fed.Cir.1986) (citation omitted). Courts, including our own, have measured trial court decisions to try issues separately by whether fairness was advanced in the particular case: We add the caveat expressed in Frasier v. Twentieth Century-Fox Film Corp., 119 F.Supp. 495, 497 (D.Neb.1954) that separation of issues “should be resorted to only in the exercise of informed discretion and in case and at a juncture which move the court to conclude that such action will really further convenience or avoid prejudice” and observe further that “[a] paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Baker v. Waterman S.S. Corp. 11 F.R.D. 440, 441 (S.D.N.Y.1951). Moss v. Associated Transport Inc., 344 F.2d 23, 26 (6th Cir.1965). In our case this same test applies to whether the decision is to try only one or more than one issue separately. Our opinion in In re Beverly Hills Five Litigation, 695 F.2d 207 (6th Cir.1982), approving trifurcation on the causation question, did not indicate any different standard of review than that applicable to bifurcation nor has our research led us to authority suggesting such a distinction. While few cases appear to have been trifurcated on the issue of causation, there are nonetheless numerous cases that have tried an individual issue separately under circumstances that, had the issue been decided in favor of the plaintiff, the trial would have had more than two phases to it. In affirming a trial solely on the issue of the defense of statute of limitations, Yung v. Raymark, 789 F.2d at 400, we quoted Wright & Miller and held that “Rule 42(b) is sweeping in its terms and allows the court, in its discretion, to grant a separate trial of any kind of issue in any kind of case.” C. Wright, A. Miller & F. Elliott, supra, § 2389" }, { "docid": "10888756", "title": "", "text": "and at a later time, by damage trials. In making this ruling, we have weighed the factors outlined herein. We expressly determine that separate trials of liability and damages are in furtherance of convenience to the litigants, counsel, and the court, that prejudice to any party will be avoided, and that separate trials are most certainly conducive to expedition and economy. In determining whether to order separate trial of issues, the following are considerations weighed by the court. 1. Will separate trials be conducive to expedition of the litigation and economy? 2. Will separate trials be in furtherance of convenience to the parties and avoid prejudice? 3. Are the issues sought to be tried separately significantly different? 4. Are the issues triable by jury or by the court? 5. Has discovery been directed to single trial of all issues or separate trials? 6. Will substantially different witnesses and evidence be required if issues are tried separately? 7. Will a party opposing severance be significantly prejudiced if it is granted? 8. Will an unfair advantage be afforded to a party if bifurcation is granted? 9. Will management of trial, delineation of issues, and clarity of factual questions be substantially enhanced by bifurcation? 10. Will bifurcation assist efficient judicial administration of the case? See, e. g. United Air Lines v. Wiener, 286 F.2d 302, 306 (9th Cir.), cert. denied 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384 (1961); Washington Whey Co. v. Fairmont Foods Co., 72 F.R.D. 180 (D.Nev.1976); Payton v. Abbott Labs, 83 F.R.D. 382, 394-395 (D.Mass.1979). II. “[T]he decision to grant or deny separate trials under . . Rule 42(b) is one committed to the sound discretion of the trial court . . .” Warner v. Rossig-nol, 513 F.2d 678, 684 (1st Cir. 1975). Accord, In re Master Key Antitrust Litigation, 528 F.2d 5, 14 (2d Cir. 1975); Garber v. Randeli, 477 F.2d 711 (2d Cir. 1973). Separate trial of separate issues “must be grounded upon a clear understanding between court and counsel of the issue or issues involved in each phase and what proof will be required to" }, { "docid": "10888758", "title": "", "text": "pass from one phase to the next.” State of Alabama v. Blue Bird Body Co., Inc., 573 F.2d 309, 319 (5th Cir. 1978), quoting Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir. 1976) (footnote omitted). See, e. g., Warner v. Rossignol, 513 F.2d 678, 684 (1st Cir. 1975); Moss v. Associated Transport, Inc., 344 F.2d 23, 26 (6th Cir. 1965); United States v. International Business Machines Corp., 60 F.R.D. 654, 657 (S.D.N.Y.1973). While economy and convenience may properly be considered in the decision to bifurcate, neither is the ultimate objective. “A paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Baker v. Waterman, 11 F.R.D. 440 (S.D.N.Y.1951). See, also, Moss v. Associated Transport, Inc., supra. However, “it is the interest of efficient judicial administration which is to be considered, rather than the wishes of the parties.” 9 Wright & Miller, Federal Practice and Procedure § 2388 at 279. One purpose behind Rule 42(b) is the deferral of costly and potentially unnecessary discovery and trial preparation on other phases of the case pending resolution of preliminary dispositive issues. See, Ellingson Timber Co. v. Great Northern Ry. Co., 424 F.2d 497 (9th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 354, 27 L.Ed.2d 265 (1970). While the most common example of bifurcation occurs in the separate trial of the issues of liability and damages in personal injury actions, Crumm'ett v. Corbin, 475 F.2d 816 (6th Cir. 1973), courts have bifurcated issues for trial in a wide variety of cases. See, LoCicero v. Humble Oil & Refining Co., 52 F.R.D. 28 (E.D.La.1971) (antitrust); Ellison v. Rock Hill Printing & Finishing Co., 64 F.R.D. 415 (D.S.C.1974) (employment discrimination); Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974), cert, denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1975) and Love v. Pullman Co., 21 F.R.Serv.2d 629 (D.Colo. 1975) (class actions); Singer v. Dorr, 38 F.R.D. 167 (E.D.La.1965) (admiralty); Shepard v. International" }, { "docid": "7789378", "title": "", "text": "were granted. The Court therefore finds that defendants have failed to show that a substantial risk of confusion will result if all issues in this case are decided at a single trial. Perhaps the most important consideration for a court ruling on a motion to bifurcate is whether separate trials would unduly prejudice the non-moving party. H.B. Fuller, 595 F.Supp. at 625. As plaintiff has correctly indicated, prejudice under these circumstances may simply amount to unfair delay of the final disposition of the matter. Id. Applying this definition of prejudice, the Court finds that separate trials here might very well prejudice plaintiff. In addition, considering the attorneys’ behavior in this case so far, it appears inevitable that, if the motion to bifurcate were granted, both the discovery process and the liability trial would be repeatedly delayed by disputes regarding the discover-ability or admissability of evidence. Moreover, the foreseeable appeal of the outcome of the liability trial might further delay the trial on damages. Finally, while the Court is reluctant to ascribe bad faith to defendants in filing this motion, its timing does appear to be conspicuously fortuitous — defendant filed this motion on the eve of the date its responses to plaintiff’s interrogatories were due and defendant has not since that time responded to discovery on damages. Under the circumstances, a delay such as we suggest above would clearly be unfair to plaintiff. Speculation aside, defendant appears to be able to point to little in the way of convenience or judicial economy to support its motion. It is undeniable that, if the Court were to bifurcate the trial and defendants were to prevail on the infringement issue, there would be no trial on damages; however, if defendant were to lose on liability, the two trials would end up taking considerably more time than would have been required to reach the same outcome with a single trial. Given the very limited benefit to be derived from bifurcation in this case, the Court is simply not willing to take the gamble that defendant recommends. Defendant’s motion will thus be denied. II. DEFENDANT’S" }, { "docid": "22197210", "title": "", "text": "Romacho v. Stanley, 567 F.Supp. 1417, 1419 n. 2 (S.D.N.Y.1983), affd sub nom. Morse v. Stanley, 732 F.2d 1139 (2d Cir.1984). However, the discretion to consolidate is not unfettered. Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir.1983) (en banc), cert. denied, 464 U.S. 1040, 104 S.Ct. 703, 79 L.Ed.2d 168 (1984). Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. Flintkote Co. v. Allis-Chalmers Corp., 73 F.R.D. 463 (S.D.N.Y.1977). When exercising its discretion, the court must consider: [Wjhether the specific risks of prejudice and possible confusion [are] overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses, and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Hendrix, 776 F.2d at 1495 (quoting Arnold, 681 F.2d at 193). When considering consolidation, a court should also note that the risks of prejudice and confusion may be reduced by the use of cautionary instructions to the jury and verdict sheets outlining the claims of each plaintiff. Id. In the instant case, the court properly exercised its discretion in consolidating these two cases for trial. Courts in the Southern and Eastern Districts of New York have used the criteria outlined in an unreported Maryland district court case, In re All Asbestos Cases Pending in the United States District Court for the District of Maryland, (D.Md. Dec. 16, 1983) (en banc), (hereinafter In re Maryland Asbestos Cases) as a guideline in determining whether to consolidate asbestos exposure cases. See, e.g., In re Joint Eastern and Southern Districts Asbestos Litigation, 125 F.R.D. 60, 64 (E.D.N.Y./S.D.N.Y.1989); In re Joint Eastern and Southern Districts Asbestos Litigation, slip op. at 7, 1990 WL 4772 (E.D.N.Y./S.D.N.Y. Jan. 16, 1990). In In re Maryland Asbestos Cases, the criteria included: “(1) common work-site; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each" }, { "docid": "16833282", "title": "", "text": "a claim or to try it separately is left to the discretion of the trial court. See Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409, 412 (3d Cir.1967) (Rule 21); Lis v. Robert Packer Hospital, 579 F.2d 819, 824 (3d Cir.1978) (Rule 42(b)). With regard to severance decisions, the court is not required to consider anything in particular in reaching its conclusion. With regard to bifurcation decisions, the court must consider whether separate trials would “further convenience or avoid prejudice” or promote judicial economy. Miller v. N.J. Transit Auth. Rail Operations, 160 F.R.D. 37, 40 (D.N.J.1995) (quoting McCrae v. Pittsburgh Corning Corp., 97 F.R.D. 490, 492 (E.D.Pa.1983)). Because “a single trial tends to lessen the delay, expense and inconvenience to all parties,” the burden rests on the party seeking bifurcation to show that it is proper. Id. (quoting Lowe v. Philadelphia Newspapers, Inc., 594 F.Supp. 123, 125 (E.D.Pa.1984)). While Reid & Ullman request that the Court sever Cushman & Wakefield’s third-party claims against them, these third-party defendants cite to both Rule 21 and Rule 42(b), suggesting that they are not certain whether they seek to have the claims against them severed or simply tried separately from the primary claims in this action. The Court will decline to sever the third-party claims pursuant to Rule 21 because Reid and Ullman have failed to present the Court with any reason to transform the claims into an entirely independent action with an independent case number and an independent judgment. While the Court finds Reid and Ullman’s argument for bifurcation more compelling, it remains unpersuaded at this time to order separate trials. Reid and Ullman argue that failure to bifurcate will result in considerable delay: discovery in the main action has already concluded while discovery with respect to the third-party claims has just begun and will not conclude until the spring of 1999. See Reid and Ullman’s Brief at 28. Courts will order bifurcation where there will be little overlap in testimony and evidence between the two proceedings, where the issues to be decided at trial are complex and the factfinder is likely to become" }, { "docid": "15481231", "title": "", "text": "liability and damages. Bifurcation is governed by Rule 42(b) of the Federal Rules of Civil Procedure, which provides: (b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or thirdparty claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. In Martin v. Heideman, 106 F.3d 1308 (6th Cir.1997), the Sixth Circuit reiterated that “[bifurcation orders are reviewed for abuse of discretion, with the court required to con sider the potential prejudice to the parties, the possible confusion of the jurors, and the resulting convenience and economy.” Id. at 1311. See also, In re Beverly Hills Fire Litigation, 695 F.2d 207 (6th Cir.1982), cert. denied, 461 U.S. 929, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983). The Plaintiff argues that the Court should decline to order separate trials on liability and damages, because such trials would prejudice it and be inconvenient. Plaintiff also asserts that resolving this lawsuit with a single trial will not cause confusion to the jurors. According to Defendants, bifurcation is necessary in order to prevent the Defendants from suffering prejudice in the form of premature and, perhaps, unnecessary disclosure of information concerning their personal finances. In addition, Defendants contend that a single trial will confuse the jurors and that separate trials will promote judicial economy. In Brad Ragan, Inc. v. Shrader’s, Inc., 89 F.R.D. 548 (S.D.Ohio 1981), this Court addressed and rejected the defendant’s argument that liability and damages should be resolved in separate trials, in the manner suggested by Defendants, in order to avoid the prejudice which would flow from the premature and possibly unnecessary disclosure, through discovery, of its confidential business records which would be used to establish the plaintiffs remedy: Although the possibility of premature and unnecessary disclosure of Defendant’s confidential business records is" }, { "docid": "23256383", "title": "", "text": "causation. As the Rule indicates, and as our circuit has recognized, the court in ordering separate trials must consider several issues such as potential prejudice to the parties, potential confusion to the jury, and the relative convenience and economy which would result. See, e.g., Roster, supra, 595 F.2d at 355-56. A balance of these concerns led the Eighth Circuit to approve bifurcation of the causation issue in Beeck v. Aquaslide ’N’ Dive Corp., 562 F.2d 537 (8th Cir. 1977). The court observed: Evidence of plaintiffs’ injuries and damages would clearly have taken up several days of trial time, and because of the severity of the injuries, may have been prejudicial to the defendant’s claim [that it did not manufacture the product that injured plaintiff] .... Judicial economy, beneficial to all the parties, was obviously served by the trial court’s grant of a separate trial. Id. at 542. The Beeck court also recognized that whether resolution of a single issue would likely be dispositive of an entire claim is highly relevant in determining the efficacy of bifurcation. The trial judge in the present case considered both the projected length of the trial and the likelihood that a resolution of the causation issue could shorten it. The conclusion of the trial judge has support in the record. The trial on causation alone took thirty-two days. Proof regarding the further issues of liability among the numerous defendants and of damages would be extensive and expensive. It therefore was reasonable for the trial judge to conclude that litigation of those issues should be avoided if they might be mooted by an adverse finding on the causation issue. The value of severance in expediting this case has already been proved. Had the juror experiment required a mistrial after the entire case had been tried, many more weeks of effort would have to be repeated. A strong argument can, it is true, be made against the bifurcation of a trial limited to the issue of causation. There is a danger that bifurcation may deprive plaintiffs of their legitimate right to place before the jury the circumstances" }, { "docid": "7976569", "title": "", "text": "F.3d 492, 500 (1st Cir.1994) (internal citations omitted). Accordingly, any sufficiency of the evidence challenge on appeal must be grounded in the record as a whole. Here, defendants also argue that the trial record considered in its entirety did not support the jury verdict, and we address that claim later in the discussion. 2. Severance On October 11, 1997, the district court severed the case into four separate trials, finding that it is not practical or just to subject one jury panel to a trial in which 82 plaintiffs with varying claims will be testifying. No single jury panel would be able to remember all of the testimony and evidence or be able to reach a fair and impartial verdict at the end of that time. It is the opinion of this Court that severance will most likely result in a just final disposition of this litigation. The defendants objected on numerous grounds, arguing inter alia that the court’s proposal (1) precluded defendants from eliciting contradictory testimony among plaintiffs, (2) imposed increased expense and inconvenience on defendants by compelling the examination of expert witnesses and government officials on four occasions rather than one, (3) reduced the likelihood of an impartial jury for the second, third and fourth plaintiff groups, and (4) hampered defendants’ ability to portray the relevant events to the jury in a comprehensive fashion. On October 15, the court emphatically rejected these concerns in a written ruling: The considerations alleged by Defendants as to the fact that they would have to present evidence at four different occasions is of secondary importance. “A paramount consideration at all times in the administration of justice is a fair and impartial trial to all litigants. Considerations of economy of time, money and convenience of witnesses must yield thereto.” Acevedo-Garcia v. Vera-Monroig, 204 F.R.D. 26, 30 (D.P.R.2001) (quoting In re Bendectin Litigation, 857 F.2d 290, 308 (6th Cir.1988)). Defendants lodge two objections to the severance on appeal. First, they argue that the district court’s refusal to try the claims of all eighty-two plaintiffs at once was inappropriate and unfairly prejudicial. We can dispense" }, { "docid": "14657057", "title": "", "text": "113, 114 (E.D.La.1992). The decision to bifurcate pursuant to Rule 42(b) is one made on a case by case basis and committed to the discretion of the district court. Kimberly-Clark, 131 F.R.D. at 608. “In considering such a course, the court should remain mindful of the traditional role of the factfinder; i.e. to make an ultimate determination on the basis of a ease presented in its entirety.” Id. In order for a court to grant bifurcation, the party seeking bifurcation has the burden of demonstrating that judicial economy would be served and that no party would be prejudiced by separate trials, based on the circumstances of the individual case. Novopharm Ltd. v. Torpharm, Inc., 181 F.R.D. 308, 310 (E.D.N.C.1998). Thus, “even if bifurcation might somehow promote judicial economy, courts should not order separate trials when bifurcation would result in unnecessary delay, additional expense, or some other form of prejudice. Essentially, ... courts must balance the equities in ruling on a motion to bifurcate.” Laitram, 791 F.Supp. at 115. 1. A Court Must Weigh Competing Prejudices When weighing the competing equities under Rule 42(b), prejudice is 'the Court’s most important consideration. Id. See also Corrigan v. Methodist Hospital, 160 F.R.D. 55 (E.D.Pa.1995) (separate trials are not granted absent a showing of “compelling prejudice” in criminal cases, and there is no reason to hold civil cases to a higher standard). The Court must balance two types of competing prejudice: first, prejudice that may arise because of potential confusion of a jury on complicated issues if bifurcation is denied; second, prejudice caused by-the considerable delay that will result if separate trials and discovery is ordered. Laitram, 791 F.Supp. at 115-16. The former can be remedied with cautionary warnings, limiting instructions, special verdict forms, and other instructions to the jury. Corrigan v. Methodist Hospital, 160 F.R.D. at 57. The latter cannot be remedied except by denying separate trials. 2. Separate Trials Are Ordered Only Under Extenuating Circumstances In those cases that have granted motions for bifurcation, the facts and circumstances were such that bifurcation lent itself to judicial economy while not unduly prejudicing any" }, { "docid": "17474608", "title": "", "text": "and economy.” Accordingly, a bifurcated trial may be considered inappropriate if it would result in duplication of effort, undue delay or expense, or inconvenience. Remcor Products Co. v. Servend International, Inc., 1994 WL 594723 at *2 (N.D.Ill., Oct. 28, 1994). The party seeking bifurcation has the burden of demonstrating that judicial economy would be promoted and that no party would be prejudiced by separate trials. Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D.Cal.1992). Bifurcation issues must therefore be resolved upon the specific circumstances of each case. Dentsply International, Inc. v. Kaydex, 1994 WL 376276 at *1 (N.D.Ill., July 11, 1994). This decision is left to the sound discretion of the Court. Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209, 1212 (Fed.Cir.1987); Lis v. Robert Packer Hospital, 579 F.2d 819 (3d Cir.1978), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 346 (1978); Idzojtic v. Pennsylvania R. Co., 456 F.2d 1228, 1230 (3d Cir.1972). 1. Bifurcation of Liability and Damages is Appropriate Federal precedent suggests that the entire damages phase of patent litigation could be severed from issues of liability, upon a finding that the damages issues are complicated and extensive evidence would be necessary on these issues. See Spectra-Physics Lasers, Inc. v. Uniphase Corp., 144 F.R.D. 99, 101 (N.D.Cal.1992); Johns Hopkins Univ. v. Cellpro, 1995 WL 65572 at *5 (D.Del., Feb. 6,1995). Courts have found that concerns of prejudice, complexity, expedition, and judicial economy are particularly significant in patent cases: In the normal case separate trial of issues is seldom required, but in a patent infringement suit considerations exist which suggest that efficient judicial administration would be served by separate trials on the issues of liability and damages. The trial of the damages question in such a suit is often difficult and expensive, while being easily severed from the trial of the questions of validity and infringement of the patent. A preliminary finding on the question of liability may well make unnecessary the damages inquiry, and thus result in substantial saving of time of the Court and counsel and reduction of expense to the" } ]

[ { "docid": "23111068", "title": "", "text": "Cir.1981) (four examples of such “special situations” are proposed class action settlements, proposed shareholder derivative suit settlements, proposed compromises of claims in bankruptcy court, and consent decrees in antitrust suits brought by the United States). In ordinary litigation, that is, lawsuits between private parties, courts recognize that settlement of the dispute is solely in the hands of the parties. In City of Miami, the Fifth Circuit described the settlement process in litigation between private parties as follows: If the parties can agree to terms, they are free to settle the litigation at any time, and the court need not and should not get involved. * * * “the traditional view is that the judge merely resolves issues submitted to him by the parties ... and stands indifferent when the parties, for whatever reason commends itself to them, choose to settle a litigation.” 614 F.2d at 1330 (quoting Judge Wyzanski in Heddendorf v. Goldfine, 167 F.Supp. 915, 926 (D.Mass.1958)); see also United States v. Louisiana, 527 F.Supp. 509, 512 (E.D.La.1981) (a trial court ordinarily plays little or no part in overseeing the settlement of a lawsuit); Georgevich v. Strauss, 96 F.R.D. 192, 197 (M.D.Pa.1982), appeal dismissed, 722 F.2d 731 (3d Cir.1983). Courts not only frown on interference by trial judges in parties’ settlement negotiations, but also renounce the practice of approving parties’ settlement agreements. See City of Miami, 614 F.2d at 1330; Levinson v. Maison Grande, Inc., 553 F.Supp. 350, 352 (S.D.Fla.1982). In City of Miami, the Fifth Circuit recognized that procedurally, parties can prevent a court from becoming involved in the settlement process by agreeing that plaintiff shall dismiss the lawsuit by stipulation. 614 F.2d at 1330. The court pointed out that Rule 41 of the Federal Rules of Civil Procedure allows a lawsuit to be dismissed at any time by the consent of all parties. Id. at 1330 n. 15. Caselaw concerning stipulated dismissals under Rule 41(a)(l)(ii) is clear that the entry of such a stipulation of dismissal is effective automatically and does not require judicial approval. First National Bank v. Marine City, Inc., 411 F.2d 674, 677 (3d" } ]

[ { "docid": "1091875", "title": "", "text": "727(a)(2)(A) may not be denied discharge of his debts if he reveals the transfers to his creditors, recovers substantially all of the property before he files his bankruptcy petition, and is otherwise qualified for a discharge” and similarly may have a discharge in an involuntary case but “the debtor must be making a good faith effort to recover the property prior to the filing of the involuntary petition” and “must actually recover the property within a reasonable time after the filing of the involuntary petition.” Adeeb, 787 F.2d at 1345-46. Contra Davis, 911 F.2d at 562. Waiting until after the discharge is denied is waiting too long. Once a judgment is entered denying discharge, vacatur of judgment on account of subsequent settlement that calls for transfer of property that was concealed with the intent penalized by section 727(a)(2)(A) is not appropriate. Where the judgment is also premised on false oaths made with the intent penalized by section 727(a)(4)(A), a vacatur is even more inappropriate. The debtors should not be allowed to purchase a discharge to which, as a matter of law, they are not entitled. The motion to approve settlement will be denied. An appropriate order will issue. . Paragraph 12 of the settlement agreement provides, in pertinent part: \"It is expressly understood between all parties [that] this settlement is subject to court approval of the dismissal of the adversary action and said dismissal is a condition precedent to the enforcement of this settlement.” . This is not, however, a motion to approve compromise pursuant to Federal Rule of Bank ruptcy Procedure 9019(a) as it is made by chapter 7 debtors rather than by the trustee. The procedure contemplated by that rule has, however, been followed. . I also decline the invitation to rule on intervention by the United States Trustee as a party plaintiff or substitution (see Federal Rules of Civil Procedure 24 and 25, incorporated by Federal Rules of Bankruptcy Procedure 7024 and 7025) and on the limitations question, because the terms of the remand from the Bankruptcy Appellate Panel restrict my authority to consideration of the motion" }, { "docid": "21743647", "title": "", "text": "a request for approval of the Settlement Agreement in accordance with applicable Bankruptcy Rules, and misconstrued the difference between the existence and enforcement of contracts. Federal law, namely, the Bankruptcy Code and the Bankruptcy Rules, apply to the enforcement of the Settlement Agreement, given the Debtors’ pending chapter 11 cases. Indeed, the Settlement Agreement itself set forth the mechanisms for its implementation through a sale under § 363 and confirmation of a plan under § 1129. Furthermore, Puerto Rico law also imposed on the Debtors the obligation to proceed in good faith with the Settlement Agreement. “Puerto Ric[o] law imposes the duty of good faith performance on contracting parties.” Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 108-09 (1st Cir. 2001) (citing An-Port, Inc. v. MBR Indus., Inc., 772 F.Supp. 1301, 1314 (D.P.R. 1991) ( “The requirement of good faith between the parties in a contract ... ■ must guide all contacts between the contracting parties during the existence of the relationship.”); AMECO v. Jaress Corp., 98 P.R.R. 820 (1970) (contracting parties have obligations by law that extend “to cover not only what has been expressly stipulated, but also the consequences which, according to their nature, are in accordance with good faith”); P.R. Laws Ann. tit. 31, § 3375 (1990)). The Bankruptcy Rules provide a procedure for the bankruptcy court’s consideration of a motion to approve a compromise or settlement at the request of a trustee or other estate representative. See Fed. R. Bankr. P. 9019(a). Specifically, Bankruptcy Rule 9019(a) provides: “On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.” Fed. R. Bankr. P. 9019(a). Once a motion to compromise is filed: A bankruptcy judge has the authority to approve a compromise of a claim pursuant to Bankruptcy Rule 9019(a). The ultimate issue on appeal is whether the bankruptcy court abused its discretion when it approved the" }, { "docid": "6188079", "title": "", "text": "effect on the rights of any of the class members. That is so because any class member will be able to file an individual claim or, if appropriate, a representative claim on the issues covered by the settlement after such a dismissal. With the case in its present posture, some courts might not deem it necessary to rule on the fairness of a proposed class action settlement because the class members’ rights will not be adversely affected and the primary purpose of Federal Rule of Civil Procedure 23(e), the protection of absent class members, is not directly applicable. This Court believes that such an approach would be imprudent. First, the plain language of Rule 23(e) requires court approval of all dismissals or compromises of class actions. Even Federal Rule of Civil Procedure 41(a) excepts class actions from those cases which may be dismissed by a plaintiff without a court order. Second, allowing a class representative to dismiss an action without court approval if the dismissal is without prejudice would prevent the court from overseeing such class actions and create the potential for abuse by class representatives who bring meritless class actions for their settlement value. Even though the potential for abuse is not as great as when the dismissal is with prejudice because the class representatives cannot settle at the expense of the absent class members, the added leverage that a class representative has by virtue of class certification could lead to settlements without prejudice that unfairly com- pensate class representatives and counsel. Finally, by moving for class certification pursuant to Federal Rule of Civil Procedure 23(c), the class representative has voluntarily taken on a court imposed, fiduciary responsibility. See Zimmer Paper Products, Inc. v. Berger & Montaque, P.C., 758 F.2d 86, 95 (3d Cir.1985) (Weis, J., dissenting) (“The fiduciary obligation of class counsel may gó beyond the notice requirements of Rule 23(e).”), cert. denied, 474 U.S. 902, 106 S.Ct. 228, 88 L.Ed.2d 227 (1985). This obligation may not simply be abandoned at will but can only be relinquished with court approval. For all such reasons, this Court concludes that" }, { "docid": "6188078", "title": "", "text": "the Settlement Agreement and will be precluded from further litigation of their individual claims. The Supreme Court, in a discussion of the court approval requirement of Rule 23(e), alluded to this underlying assumption: The certification of a suit as a class action has important consequences for the unnamed members of the class. If the suit proceeds to judgment on the merits, it is contemplated that the decision will bind all persons who have been found at the time of certification to be members of the class. Once the suit is certified as a class action, it may not be settled or dismissed without the approval of the court. Sosna v. Iowa, 419 U.S. 393, 399 n. 8, 95 S.Ct. 553, 557 n. 8, 42 L.Ed.2d 532 (1975) (citations omitted). The settlement agreement in this case, unlike any reported decision cited by the parties or located by the Court, provides that the dismissal of this class action is without prejudice. Approval of the settlement and dismissal of the action without prejudice will not have an adverse effect on the rights of any of the class members. That is so because any class member will be able to file an individual claim or, if appropriate, a representative claim on the issues covered by the settlement after such a dismissal. With the case in its present posture, some courts might not deem it necessary to rule on the fairness of a proposed class action settlement because the class members’ rights will not be adversely affected and the primary purpose of Federal Rule of Civil Procedure 23(e), the protection of absent class members, is not directly applicable. This Court believes that such an approach would be imprudent. First, the plain language of Rule 23(e) requires court approval of all dismissals or compromises of class actions. Even Federal Rule of Civil Procedure 41(a) excepts class actions from those cases which may be dismissed by a plaintiff without a court order. Second, allowing a class representative to dismiss an action without court approval if the dismissal is without prejudice would prevent the court from overseeing such" }, { "docid": "15943102", "title": "", "text": "Similarly, the legitimacy and integrity of the process requires that the § 727 discharge, a right created by Congress and adjudicated and granted by the federal courts, not be treated as a commodity. Accordingly, the discharge “is not a proper subject for negotiation and the exchange of a quid pro quo” between a debtor and creditors. In fact, such an exchange may be criminal. A creditor, therefore, may not initiate a § 727(a) proceeding as a tool in negotiating the nondis-chargeability of a debtor’s debt to it. Furthermore, a debtor may not obtain a discharge by paying a creditor who has filed a § 727(a) complaint in exchange for dismissal of the complaint. This policy of preventing the trafficking of discharges is articulated in Federal Rule of Bankruptcy Procedure 7041, which governs the dismissal of adversary proceedings in bankruptcy. While plaintiffs usually have a right to dismiss civil complaints when all parties to the litigation have agreed to do so, Bankruptcy Rule 7041 restricts that right in § 727(a) proceedings, stating: Rule 41 F.R.Civ.P. applies in adversary proceedings, except that a complaint objecting to the debtor’s discharge shall not be dismissed at the plaintiff’s instance without notice to the trustee, the United States trustee, and such other persons as the court may direct, and only on order of the court containing terms and conditions which the court deems appropriate. This Rule plainly affords the bankruptcy court considerable discretion in determining whether a § 727(a) complaint should be dismissed at the request of a plaintiff, and if so under what terms and conditions. Against this background of § 727(a) and the policies that it embodies, and the plain language of Bankruptcy Rule 7041, we conclude that the bankruptcy court’s refusal to approve the Appellants’ unopposed Settlement was not an abuse of discretion given the facts in this case. By its very terms, the Settlement requires the Debtors to pay the Bank and, in exchange, the Bank has agreed to dismiss its § 727(a) causes of action against the Debtors. This quid pro quo exchange is exactly what Bankruptcy Rule 7041 discourages," }, { "docid": "6188030", "title": "", "text": "DuBOIS, District Judge. ORDER AND NOW, to wit, this 5th day of January, 1995, upon consideration of the Stipulation of Dismissal Pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii), the Proposed Settlement Agreement, as amended, Plaintiffs’ Memorandum of Law in Support of Proposed Settlement Agreement, Defendants’ Memorandum of Law in Support of the Proposed Settlement Agreement, the objections of class members received by the Court between August 9, 1994, and the date of this Order, and all other documents to which reference is made in this Court’s Memorandum which will be filed on or before January 17, 1995, following a hearing on December 12 and 13, 1994, at which time the Court received testimony from designated class representatives and other class members concerning the Proposed Settlement Agreement, for the reasons summarized below and set forth in more detail in the Court’s Memorandum which will be filed on or before January 17, 1995, IT IS ORDERED as follows: 1. Members of the plaintiff class were given adequate notice of the proposed settlement, the proposed dismissal of the action without prejudice, their right to file objections, the manner of filing objections, and the hearing on the proposed settlement scheduled for December 12, 1994 and December 13, 1994, pursuant to Federal Rule of Civil Procedure 23(e) and Orders of the Court dated September 20, 1994, November 21, 1994 and November 29, 1994; 2. The Settlement Agreement fairly, reasonably and adequately advances and protects the interests of the plaintiff class and is APPROVED pursuant to Federal Rule of Civil Procedure 23(e). The Court’s review of the Settlement Agreement was conducted solely to comply with Federal Rule of Civil Procedure 23(e) and does not convert the Settlement Agreement into an order of the Court or a consent decree; 3. The Stipulation of Dismissal without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii), except for plaintiffs’ claims regarding tuberculosis control which will be covered by a subsequent order, is APPROVED in accordance with Federal Rule of Civil Procedure 23(e); 4. Any plaintiff, including those plaintiffs who filed objections or wrote letters to the Court which" }, { "docid": "11136904", "title": "", "text": "In re Purofied Down Prods. Corp., 150 B.R. 519, 523 (S.D.N.Y.1993) (same). Essentially the Court should “compare the terms of the compromise with the likely rewards of litigation,” TMT, 390 U.S. at 425, 88 S.Ct. 1157, keeping the best interests of the estate paramount. Conclusion Although the Bankruptcy Court’s concern to protect the integrity of the bankruptcy system and avoid the taint of compromise is entirely laudable, a blanket prohibition on settlement of § 727 cases is not justified by the language of Bankruptcy Rule 7041, the majority of jurisdictions that have considered the matter, or countervailing public policy concerns favoring dispute resolution. Accordingly, the decision of the Bankruptcy Court is reversed and the case remanded for the Court to exercise its judgment to determine whether the terms of the settlement are fair and equitable and in the best interests of the estate, and to fashion case-appropriate terms and conditions if necessary to protect other creditors. . Rule 41(a)(1) permits dismissal by a plaintiff without order of court either by filing a notice of dismissal before service of an answer or motion for summary judgment, or by filing a stipulation of dismissal. Fed.RXiv.P. 41(a)(1). . Rule 9019(a) provides: \"[o]n motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct.” Fed. R. Bankr.P. 9019(a)." }, { "docid": "5387716", "title": "", "text": "remaining in the Southern District Court. On July 30, 2002, the Northern District Court (Kahn, J.) referred the transferred portion of the adversary proceeding, the Trustee’s declaratory action, to the Bankruptcy Court, which reopened and reinstated it on August 12, 2002. The Trustee, Sphere Drake, and other interested parties and classes involved in a variety of cases in various courts reached a settlement which included the adversary proceeding. The settlement took on its final form in December 2002 as a Stipulation and Agreement of Settlement (“Agreement”). The Agreement stated that the “[Agreement], and the obligations of the Settling Defendants thereunder, are expressly conditioned upon the prior occurrence of’ several specified events. One such event was that “[a]n order approving this [Agreement] and authorizing the Trustee to consummate it, substantially in the form annexed hereto as Exhibit J[,] shall have been entered by the Bankruptcy Court.” “Exhibit J” to the Agreement was a proposed “Final Order and Judgment Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and to Rules 7054(B) and 9019 of the Federal Rules of Bankruptcy Procedure Approving Settlement and Compromise of Trustee’s Claims Against the Settling Defendants.” Another event on which the Agreement was conditioned was the entry of a judgment in the Southern District Court approving the Agreement. On March 13, 2003, the Trustee filed a motion in Bankruptcy Court, pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure, seeking an order authorizing him to consummate the Agreement. This motion explained, in relevant part, that “[b]ecause the [Agreement] resolves claims pending before [the Bankruptcy Court] and the [Southern District Court], it is contingent upon approval by both courts. Accordingly, counsel for the Settlement Class is simultaneously seeking approval of the [Agreement] in the [Southern District Court].” On March 26, 2003, Ades-Berg timely objected to the 9019 motion. On May 22, 2003, the Bankruptcy Court issued its Memorandum Decision, Findings of Fact, Conclusions of Law, and Order relating to the Trustee’s 9019 motion (the “9019 Order”). The Bankruptcy Court, though noting Ades-Berg’s objection, concluded that the Agreement was “fair and reasonable and in" }, { "docid": "8697295", "title": "", "text": "providing that any person or entity who would otherwise be a member of the Class who so desires may exercise the right to exclude him/her/itself from the Class, but only if he, she or it complies with the requirements for so doing as set forth in the Shareholder Settlement Notice, (2) entry of final judgment by the New York Supreme Court approving the settlement embodied in the Shareholder Stipulation and dismissing the complaint therein with prejudice, (3) the United States Bankruptcy Court for the Southern District of New York must approve the Shareholder Stipulation, and (4) on or before the effective date of such stipulation, (a) dismissal of the Virginia Shareholder Action shall not have been appealed by plaintiffs in that action or any appeal shall have been dismissed without the need for any court approval or with such court approval as is necessary, and (b) dismissal of the Delaware Shareholder Action by plaintiffs in that action without the need for any court approval or with such court approval as is necessary. H. State Court And Bankruptcy Court Approval Of Shareholder Stipulation On July 22, 2002, the New York Supreme Court issued an order, which, among other things, conditionally certified the New York Shareholder Action as a ■class action on behalf of the Class, approved the form of notice of settlement to members of the Class and scheduled a hearing for August 22, 2002. On such hearing date, the New York Supreme Court issued an order and final judgment (the “New York Final Order and Judgment”) which, among other things, approved the settlement terms of the Shareholder Stipulation, noted that non-excluded plaintiffs and Class members are deemed to have released and forever discharged Settled Claims against the Released Parties, and dismissed the complaint therein with prejudice. Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (hereinafter each rule entitled “Bankruptcy Rule”), the Debtor filed a motion on August 2, 2002 seeking the Court’s approval for the Debtor to enter into the Shareholder Stipulation. In the Debtor’s affidavit in support of the proposed scheduling order concerning its Bankruptcy Rule" }, { "docid": "11726955", "title": "", "text": "and district courts. We acknowledge that the bankruptcy court did not issue any order which was specifically labeled “final judgment” and that Federal Rule of Civil Procedure 58 requires that a final judgment be set forth on a separate document and be entered by a clerk of the court. However, when the parties voluntarily agreed to a dismissal, under Federal Rule of Civil Procedure 41(a)(1)(h) and under the case law of this circuit, any further actions by the court were superfluous. See Williams v. Ezell, 531 F.2d 1261, 1264 (5th Cir.1976) (district court lacks power to act once plaintiff files a valid Rule 41(a)(1) motion). Therefore, the dismissal order entered by the bankruptcy court is rendered irrelevant to the question of the finality of the judgment. The bankruptcy court adversary proceeding ended when the stipulations to dismiss were filed and the finality of that ending cannot be disturbed by later actions of the bankruptcy court. Any reservation that the government may have had regarding the settlement was auto matically lost when it agreed to the stipulations for dismissal. Res judicata operates to bar any claim which could have been brought in the previous action. See Kaspar at 535 (“the effect of a judgment extends to the litigation of all issues relevant to the same claim between the same parties, whether or not raised at trial.”). The final amount of the judgment is most certainly an issue which could have been, and in fact was, raised in the previous proceeding. The final dismissal of that claim closes off the possibility of raising that question in any subsequent proceeding, including the instant action. We conclude that the original settlement signed by the parties and approved by the bankruptcy court carries res judicata effect and precludes relitigation of the merits of the claims decided in that agreement. B. Scope of the Judgment The government asserts that it adheres to the fifteen point settlement agreement. According to the government, the present action is merely directed at correcting a mistake in the government’s calculation of interest on the debtor’s overpayment. The issue of interest, the" }, { "docid": "8697296", "title": "", "text": "And Bankruptcy Court Approval Of Shareholder Stipulation On July 22, 2002, the New York Supreme Court issued an order, which, among other things, conditionally certified the New York Shareholder Action as a ■class action on behalf of the Class, approved the form of notice of settlement to members of the Class and scheduled a hearing for August 22, 2002. On such hearing date, the New York Supreme Court issued an order and final judgment (the “New York Final Order and Judgment”) which, among other things, approved the settlement terms of the Shareholder Stipulation, noted that non-excluded plaintiffs and Class members are deemed to have released and forever discharged Settled Claims against the Released Parties, and dismissed the complaint therein with prejudice. Pursuant to Rule 9019 of the Federal Rules of Bankruptcy Procedure (hereinafter each rule entitled “Bankruptcy Rule”), the Debtor filed a motion on August 2, 2002 seeking the Court’s approval for the Debtor to enter into the Shareholder Stipulation. In the Debtor’s affidavit in support of the proposed scheduling order concerning its Bankruptcy Rule 9019 motion, the Debtor specifically sought this Court’s approval not to provide notice of the motion to over a thousand creditors, including bondholders, and to shareholders. In that, the Debtor argued that such notice would not warrant the expense, would be time-consuming, and, regarding the creditors, there was an active Creditors’ Committee in place who would receive notice. Apparently, notice to shareholders was not sought because they received the Shareholder Settlement Notice under the New York Shareholder Action as members of the Class. The affidavit proposed only noticing major parties in interest, including the Office of the United States Trustee, counsel to the Debtor’s pre-petition bank lenders, counsel to the Creditors’ Committee, and counsel to the Investors. On the same date, the Court issued a scheduling order (the “Scheduling Order”) concerning the Debtor’s Bankruptcy Rule 9019 motion. In addition to the notice to parties in interest mentioned in the affidavit, the Scheduling Order also included notice to counsel for the plaintiffs in the New York Shareholder Action and all other parties who had filed notice" }, { "docid": "11136893", "title": "", "text": "727 is “a blanket prohibition of a debtor’s discharge” under certain specific circumstances, “thereby protecting the debts owed to all creditors.” State Bank of India v. Chalasani (In re Chalasani), 92 F.3d 1300, 1309 (2d Cir.1996). Because § 727 imposes an extreme penalty against wrongdoing, it is construed liberally in favor of the bankrupt, and special procedural rules govern § 727 cases. Id. at 1310. Rule 7041 of the Federal Rules of Bankruptcy Procedure governs the dismissal of § 727 complaints seeking denial of discharge. It provides that Rule 41 of the Federal Rules of Civil Procedure applies in adversary proceedings, except that a complaint objecting to the debtor’s discharge shall not be dismissed at the plaintiffs instance without notice to the trustee, the United States trustee, and such other persons as the court may direct, and only on order of the court containing terms and conditions which the court deems proper. Fed. R. Bankr.P. 7041. The rule “allows the bankruptcy court to tailor its order of dismissal to ensure that the dismissal was not obtained improperly.” Chalasani, 92 F.Sd at 1310. In general, a bankruptcy court has broad authority to approve or disapprove compromises and settlements affecting the bankruptcy estate. See In re Bates, 211 B.R. 338, 343 (Bkrtcy.D.Minn. 1997). Rule 9019(a) of the Federal Rules of Bankruptcy Procedure authorizes a bankruptcy court to approve a compromise or settlement in a case upon motion by the trustee and after notice and hearing. Fed. R. Bankr.P. 9019(a). However, as the Advisory Committee Notes to Rule 7041 remark: [dismissal of a complaint objecting to a discharge raises special concerns because the plaintiff may have been induced to dismiss by an advantage given or promised by the debtor or someone acting in his interest. Some courts by local rule or order have required the debtor and his attorney or the plaintiff to file an affidavit that nothing has been promised to the plaintiff in consideration of the withdrawal of the objection. By specifically authorizing the court to impose conditions in the order of dismissal this rule permits the confirmation of this salutary" }, { "docid": "11136894", "title": "", "text": "obtained improperly.” Chalasani, 92 F.Sd at 1310. In general, a bankruptcy court has broad authority to approve or disapprove compromises and settlements affecting the bankruptcy estate. See In re Bates, 211 B.R. 338, 343 (Bkrtcy.D.Minn. 1997). Rule 9019(a) of the Federal Rules of Bankruptcy Procedure authorizes a bankruptcy court to approve a compromise or settlement in a case upon motion by the trustee and after notice and hearing. Fed. R. Bankr.P. 9019(a). However, as the Advisory Committee Notes to Rule 7041 remark: [dismissal of a complaint objecting to a discharge raises special concerns because the plaintiff may have been induced to dismiss by an advantage given or promised by the debtor or someone acting in his interest. Some courts by local rule or order have required the debtor and his attorney or the plaintiff to file an affidavit that nothing has been promised to the plaintiff in consideration of the withdrawal of the objection. By specifically authorizing the court to impose conditions in the order of dismissal this rule permits the confirmation of this salutary practice. Fed. R. Bankr.P. 7041 advisory committee’s note. In fight of these “special concerns,” bankruptcy courts have, not surprisingly, divided over whether compromise or settlement is allowed in a § 727 action. See Bankr.Receivables Mgmt. v. de Armond (In re de Armond), 240 B.R. 51, 56 (Bankr.C.D.Cal.1999) (allowed if terms of settlement are fair and equitable and in best interests of estate); Migoscha v. Mejfert (In re Meffert), 232 B.R. 71, 73 (Bankr.S.D.N.Y.1998) (not allowed because local rules required debtor to certify that it had not given consideration for withdrawal of complaint); Bates, 211 B.R. at 348 (allowed in some circumstances; per se rule against settlement not appropriate); Bank One, Crawfordsville, NA v. Smith (In re Smith), 207 B.R. 177, 178 (Bankr.N.D.Ind.1997) (not allowed if action settled in return for private benefit and successful prosecution would benefit entire creditor body); Tindall v. Mavrode (In re Mavrode), 205 B.R. 716, 720 (Bankr.D.N.J.1997) (allowed if court determines that compromise is fair and equitable); In re Wilson, 196 B.R. 777, 780 (Bankr.N.D.Ohio 1996) (allowed if fair and equitable" }, { "docid": "15943104", "title": "", "text": "and the Appellants failed to present any evidence showing that the Settlement was something other than what it appears on its face. In so holding, we note the significance, as did the bankruptcy court, that the Settlement did not dismiss a § 523(a) proceeding. Such proceedings are not subject to the limitations on dismissal applicable to § 727(a) complaints under Bankruptcy Rule 7041. This distinction exists because § 528(a) excepts individual debts from discharge, as opposed to § 727(a), which prevents a discharge of all debts. The dismissal of a § 523(a) complaint, therefore, does not have the magnitude of a dismissal of a § 727(a) complaint-dismissal of a § 523(a) complaint only affects the rights between the individual creditor-plaintiff and the debtor. Here, the Bank did not assert a § 523(a) cause of action against the Debtors. Neither the Complaint nor the Amended Complaint contain “a short and plain statement of the claim showing that the [Bank was] entitled to relief’ under § 523(a). Rather, these papers only assert causes of action pursuant to § 727(a), which contains wholly different elements than any of the subsections of § 523(a). The general references to nondischargeability and § 523(a) were not, even under a liberal reading of the papers, sufficient to give the Debtors fair notice of what the Bank was claiming under § 523(a) or the grounds on which such a claim would have been based. Furthermore, and significantly, the Settlement itself does not mention dismissal of a § 523(a) cause of action. All of these facts support our decision that the bankruptcy court did not err in refusing to approve the Appellants’ unopposed Settlement. The Appellants rely heavily on the argument that the bankruptcy court does not have the authority “to force parties to pursue litigation they have no desire or interest in pursuing.” Yet, this is exactly what Bankruptcy Rule 7041 authorizes. Furthermore, as recognized by the Appellants, bankruptcy courts, in exercising their discretion under Bankruptcy Rule 9019, may consider, inter alia, whether the proposed settlement promotes the integrity of the judicial system. The bankruptcy court acted well" }, { "docid": "10171703", "title": "", "text": "October 27,1987 referred it to the Bankruptcy Court for further proceedings upon proper application of the parties. After notice to creditors, this Court heard the arguments for approval of compromise along with various motions to substitute as parties-plaintiff which were filed by objecting creditors. The Court DISAPPROVED the proposed compromise, and GRANTED the creditors’ motions to substitute as parties-plaintiff if Mrs. Russo does not defend the appeal. The Court also DENIED a request for attorney’s fees by Mrs. Russo. This memorandum decision is intended only to memorialize the reasons for decision and is not intended as a substitute for the Court’s bench decision for purposes of review. Bankruptcy Rule 7041 permits a plaintiff to dismiss a complaint objecting to a debt- or’s discharge only on notice to the trustee and only on order of the court containing terms and conditions that the court deems proper. In addition, Bankruptcy Rule 9019(a) provides that on motion by the trustee and after a hearing on notice to creditors, the debtor and indenture trustees as provided in Rule 2002(a) and to such other entities as the court may designate, the court may approve a compromise or settlement. Rule 2002(a)(3) provides for twenty-day notice by mail to the debtor, the trustees, and all creditors and indenture trustees of hearing on approval of a compromise or settlement of a controversy. On December 4,1987, this Court conducted a telephone status conference with plaintiff’s and defendants’ attorneys. They portrayed the compromise as generally affecting only the interests of plaintiff and defendants. I directed that they file a motion with thorough briefing regarding procedures on remand, which would be heard on December 14. At the same time I expressed a tentative belief that Rule 2002(a)(3) would eventually require that notice of the compromise be given to the trustee and all creditors. The minute entry embodying these directives was served on plaintiffs and defendants’ attorneys. Notwithstanding service of this minute entry, for reasons which this Court does not understand, none of the attorneys supporting the compromise appeared at the hearing and no brief was received. Ac cordingly, on December 14" }, { "docid": "1091876", "title": "", "text": "which, as a matter of law, they are not entitled. The motion to approve settlement will be denied. An appropriate order will issue. . Paragraph 12 of the settlement agreement provides, in pertinent part: \"It is expressly understood between all parties [that] this settlement is subject to court approval of the dismissal of the adversary action and said dismissal is a condition precedent to the enforcement of this settlement.” . This is not, however, a motion to approve compromise pursuant to Federal Rule of Bank ruptcy Procedure 9019(a) as it is made by chapter 7 debtors rather than by the trustee. The procedure contemplated by that rule has, however, been followed. . I also decline the invitation to rule on intervention by the United States Trustee as a party plaintiff or substitution (see Federal Rules of Civil Procedure 24 and 25, incorporated by Federal Rules of Bankruptcy Procedure 7024 and 7025) and on the limitations question, because the terms of the remand from the Bankruptcy Appellate Panel restrict my authority to consideration of the motion to compromise and, if granted, to vacation of the judgment denying discharge. There is, however, substantial jurisprudence on the subject of post-judgment intervention. United Airlines v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977); Officers for Justice v. Civil Serv. Comm’n, 934 F.2d 1092, 1095 (9th Cir.1991) (sixteen years after judgment); Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978); 7 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1916 (1993). . The debtors filed amended, but still materially false, schedules after Jacobson filed this action objecting to discharge. Those amendments were filed July 8, 1991. The debtors’ three children (to whom the property in issue had been transferred) filed individual bankruptcy cases on July 11, 25, and 31, 1991, each represented by different counsel and in none of which was there reference to their parents' case or a listing of Jacobson as a creditor. . Which I do only for purposes of analysis" }, { "docid": "22369480", "title": "", "text": "adversary proceeding file, if the compromise comes about in the context of an adversary proceeding.” William L. Norton, Jr., Norton Bankruptcy Law and Practice: Rules and Official Forms 845 (1990-91 ed.) (Fed. R.Bankr.P. 9019, editors' comment). Unlike an adversary proceeding, an administrative proceeding is warranted where the trustee’s actions are essentially uncontested. See Lawrence D. King, 9 Collier on Bankruptcy ¶ 9014-2-3 (15th ed. 1991) [hereinafter “Collier\"'] (unopposed motion by trustee to sell property of the estate may be handled in administrative proceeding). Although a creditor has the right to object to a proposed compromise, objection will not preclude court approval. In re A & C Properties, 784 F.2d 1377, 1382 (9th Cir.), cert. denied sub nom. Martin v. Robinson, 479 U.S. 854, 107 S.Ct. 189, 93 L.Ed.2d 122 (1986); St. Paul Fire & Marine Ins. Co. v. Vaughn, 779 F.2d 1003, 1010 (4th Cir.1985) (debtor’s objection to settlement not controlling where settlement is in “best interests” of estate); In re Mobile Air Drilling Co., 53 B.R. 605, 607 (Bankr.N.D. Ohio 1985). The commentary thus suggests that the right to notice normally accorded all \"parties in interest” under Bankruptcy Rules 2002(a)(3) and 9019(a) does not entail party status in the adversary proceeding to be settled or compromised. Second, the general notice requirement under Bankruptcy Rule 2002(a)(3) is not absolute, but can be dispensed with “for cause shown.” See In re Patel, 43 B.R. 500, 503-04 (N.D.Ill.1984). . Civil Rule 24(a) provides: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a). . The concentric arrangement of the various forms of proceedings within a bankruptcy case is reinforced in the Bankruptcy Rules. An entity asserting" }, { "docid": "10171717", "title": "", "text": "stated, “There appears to be no jurisprudence extant determining whether it is appropriate to dismiss a complaint in which the plaintiff receives an advantage.” (As noted hereinafter, there is some extant jurisprudence on this issue, and it apparently does not favor plaintiffs position.) Judge Steen in Short did not expressly decide a plaintiff could in fact receive an advantage for dismissal. Judge Steen instead used the procedures of Bankruptcy Rule 7041, which together with the related commentary reads as follows: Rule 41 F.R.Civ.P. applies in adversary proceedings, except that a complaint objecting to the debtor’s discharge shall not be dismissed at the plaintiffs instance without notice to the trustee and only on order of the Court containing terms and conditions which the court deems proper. The advisory committee note states: Dismissal of a complaint objecting to a discharge raises special concerns because the plaintiff may have been induced to dismiss by an advantage given or promised by the debtor or someone acting in his interest. Some courts by local rules or order have required the debtor and his attorney or the plaintiff to file an affidavit that nothing has been promised to the plaintiff in consideration for the withdrawal of the objection. By specifically authorizing the court to impose conditions in the order of dismissal this rule permits the continuation of this salutary practice. Bankruptcy Rule 7041, which specifically addresses complaints objecting to discharge, does not clearly authorize settlement (whereby something of value is given and received). It allows “dismissal” of a complaint, rather than “compromise” as under Bankruptcy Rule 9019, or “compromise or settlement of a controversy” as under Rule 2002(a)(3). There is limited jurisprudence to the effect that an objection to discharge cannot be compromised, and this Court has been unable to find any case law that an objection to discharge can be compromised. In re Moore, 50 B.R. 661, 13 B.C.D. 363, Bankr.L.Rep. para. 70,639 (Bkrtcy.E.D.Tenn.1985), a decision by Bankruptcy Judge Clive Bare, held that objections to discharge could not be compromised for money amounts. He said: “Tying withdrawal of objections to discharge to the settlement of" }, { "docid": "16907351", "title": "", "text": "be assessed: (1) whether the settlement is “in the best interests of the estate” and (2) whether the settlement is “fair and equitable.” However, neither of these tests is incorporated into any provision of the Bankruptcy Code. In fact, there is no section in the Bankruptcy Code which even requires that a trustee seek court approval of a settlement. The absence of such a provision is noteworthy given that the Bankruptcy Code requires court approval for other actions taken by a trustee in the administration of the bankruptcy estate. For example, a trustee may not sell or lease property of the estate outside the ordinary course or assume or reject an executory contract without court approval. 11 U.S.C. § 363(b)(1) and 365(a). Several provisions in the Federal Rules of Bankruptcy Procedure do refer to court approval of settlements. Rule 9019(a) states when the court may approve a settlement or compromise by the trustee, (a) COMPROMISE. On motion by the trustee and after notice and a hearing, the court may approve a compromise or settlement. Notice shall be given to creditors, the United States trustee, the debtor, and indenture trustees as provided in Rule 2002 and to any other entity as the court may direct. Fed.R.Bankr.P. 9019(a). Rule 2002(a)(3) dictates who must be given notice of the proposed settlement and the length of time which must pass between giving that notice and the hearing concerning the settlement’s approval. [T]he clerk ... shall give the debt- or, the trustee, all creditors and indenture trustees at least 20 days’ notice by mail of: (3) the healing on approval of a compromise or settlement of a controversy other than approval of an agreement pursuant to Rule 4001(d), unless the court for cause shown directs that notice not be sent; Fed.R.Bankr.P.2002(a)(3). Rule 4001(d) addresses to whom notice must be given with respect to settlements relating to the automatic stay, the use of estate assets, and obtaining credit. (d) AGREEMENT RELATING TO RELIEF FROM THE AUTOMATIC STAY, PROHIBITING OR CONDITIONING THE USE, SALE, OR LEASE OF PROPERTY, PROVIDING ADEQUATE PROTECTION, USE OF CASH COLLATERAL, AND OBTAINING" }, { "docid": "4735510", "title": "", "text": "of the debtor; (4) The Settlement Agreement im-permissibly contemplates payment of pre-petition debts to Viacom; and (5) The Court is bound to honor the objections of creditors. We are fully aware that Bankruptcy Rules 9019(a) and 2002(a) state that a Debt- or must ordinarily provide twenty (20) days notice to all creditors before the court may approve a compromise or settlement. We further note that we consider satisfaction of notice requirements as very important and not to be compromised in the least unless exigent circumstances justifying an alteration are present. On the other hand, we must observe that Bankruptcy Rule 9006(c) expressly provides that a bankruptcy court “for cause shown may in its discretion with or without motion or notice” reduce the time period for notice in a matter within the scope of Bankruptcy Rules 9019(a) and 2002(a). In exercise of its discretion per Bankruptcy Rule 9006(c), a court must consider, primarily, the prejudice that potentially would result to parties entitled to notice if a reduction is effected, and weigh this against the reasons for shortening the period. In the instant situation, the Court provided actual notice of the procedure to be followed in considering whether to approve the Settlement Agreement to Counsel representing all of the parties who have participated in this action on February 2, 1987. See page 4 supra. All Counsel concurred in this procedure and in fact did not raise any objection to the reduction of notice until the outset of the hearings on the Debtors’ Application to approve the Settlement Agreement on February 12, 1987. Given this scenario, the Court concludes that this argument was raised not in the good faith belief that the rights of any party had been prejudiced, since Counsel actively representing the interests of all known classes of creditors had clearly had sufficient notice of the matters in issue and the proceeding, but rather as a technical defense to block approval of the Settlement Agreement. As we indicated supra, we deemed it vital to act on this Application and give direction to these proceedings promptly, and dispatch of Notice, on February" } ]

[ { "docid": "21398684", "title": "", "text": "POSNER, Circuit Judge. The question presented by this bankruptcy appeal — a question that appears not to have arisen before — is whether “gross income,” as it appears in the section of the Bankruptcy Code which defines “farmer,” is to be given the same meaning that it has in federal income tax law. The significance of the question lies in the fact that a farmer cannot be forced into bankruptcy against his will. 11 U.S.C. § 303(a). (A farmer can, of course, file voluntarily for bankruptcy. Indeed, voluntary bankruptcy for “family farmers” was liberalized recently. See Subtitle B of Title II of the Bankruptcy Judges, United States Trustees, and Family Farmers Bankruptcy Act of 1986, P.L. 99-554, Oct. 27, 1986.) Prior to the 1978 overhaul of the bankruptcy law the definition of “farmer” had undergone a painful statutory evolution each stage of which had generated considerable litigation. See Oler, The Farmer and the Bankruptcy Laws, 40 Dickinson L.Rev. 122 (1936). In the last stage, the statute, still worded unclearly, had been interpreted to mean “an individual personally engaged in farming,” provided that “the principal part of his income” was derived from farming. See 11 U.S.C. § 1(17) (1976 ed.); In re Beery, 680 F.2d 705, 713 (10th Cir.1982). The substitution of an income test for the earlier tests of whether the individual was “chiefly” or “primarily” engaged in farming — tests hopelessly vague in practice, as shown by such cases as Powers v. Silberman, 3 F.2d 802 (3d Cir.1925), and In re Macklem, 22 F.2d 426 (D.Md.1927)—was a step toward greater precision; but the statute defined neither “principal part” nor “income,” and in particular it failed to indicate whether gross or net income was intended. See In re Beery, supra, 680 F.2d at 713-17. Against this background Congress in the 1978 Code made a fresh start by defining “farmer” as one who “received more than 80 percent of [his] gross income during” his immediately preceding “taxable year ... from a farming operation owned or operated” by him. 11 U.S.C. § 101(17). (Section 101(18) defines “farming operation” to include “farming, tillage" } ]

[ { "docid": "5570646", "title": "", "text": "applying neither the Sixteenth Amendment nor the general provision of the Income Tax Act as to what constitutes taxable income and what is cost in the determination of the amount of such income. In these cases, the decisions have decided, which is essential for deductibility, whether these expenses incurred in carrying on a business were ‘ordinary’ and ‘necessary’. We prefer to place our decision, affirming the District Court, squarely on the ground that Congress intended to tax as income on the sales here before us only the difference between the sáles price and the actual cost of the goods sold, even though a part of this cost was paid unlawfully in violation of the Emergency Price Control Act of 1942. Section 22(a) of the Internal Revenue Code, previously quoted, provides, in part: “ ‘Gross income’ includes gains, profits, and income derived from * * * sales * * Section 111(a) of this Code provides: “The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain * * Section 113(b) reads: “Adjusted basis. .The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis determined under subsection (a), adjusted as hereinafter provided.” And Subsection (a) of Section 113 reads: “Adjusted basis for determining gdin pr, loss— (a) Basis (unadjusted) of property. The basis of property shall be the cost of such property; except that * * * ” (none of the exceptions subsequently set out in the subsection are applicable here). While Treasury Regulations 111, previously quoted, provide: “Sec. 29.22(a)-5 — Gross Income From Business. In the case of a manufacturing, merchandising, 'or mining-business, ‘gross income’ means the total sales, less the cost of goods sold * * Nowhere in the Internal Revenue Act ox-in the Treasury Regulations is there any intimation that the word “cost”, as used in the Act and in those Regulations, is to be denied its actual, economic and ordinary meaning, and is to include only" }, { "docid": "20017080", "title": "", "text": "in the decedent’s return are in cludible in his successor’s. The District Court then found that the Regulations, § 1.61-3, define gross income in a merchandising business as “the total sales, less the cost of goods sold.” It was concluded that since the decedent’s accounts payable represented his cost of goods sold the only way to determine the items of gross income properly includible in his last return was to include these accounts. The District Court expressed its conclusions as follows: “The regulations under the 1954 Code, Section 1.61-3 control. ‘In the manufacturing, merchandizing or mining business, “gross income” means the total sales, less the cost of goods sold, plus any income from investments and from incidental or outside operations or sources.’ The phrase which concerns us in this case is ‘total sales less the cost of goods sold.’ If that definition were read into Section 691(a) (1), it would provide that the amount of all items of total sales, less the cost of goods sold in respect of the decedent, which are not properly includible in respect of the taxable period in which falls the date of his death or a prior period shall be included in the gross income of his successors. By implication, it appears to the Court, this means that total sales, less the cost of goods sold, which are includible with respect to the decedent must be included in the tax computed according to the short term period, which in this case is January 1, 1962, to July 9, 1962. In short, cost of goods sold is not a deduction. It is an exclusion from sales. The remainder is ‘gross income.’ “The problem is not simply a matter of using a cash basis or an accrual basis in order to determine what period shall be used in determining taxable income; it is much more fundamental. It is to determine to what taxable entity the gross income should be attributed, and it appears to the Court that the statute is clear on that. The gross income, as defined, is allocated between the decedent and his successors" }, { "docid": "4558579", "title": "", "text": "digest BAPCPA.”). . Cf. Wolkowitz v. Breath of Life Seventh Day Adventist Church (In re Lewis), 401 B.R. 431, 440 (Bankr.C.D.Cal.2009) (\"The Ninth Circuit Court of Appeals and the Ninth Circuit BAP [have] pointed out that because § 101(10A) contains the phrase 'without regard to whether such income is taxable income,’ Congress intended that Internal Revenue Code concepts not apply when determining a debtor's current monthly income. Since § 548 does not contain similar exclusionary language, this Court is not restricted from using the Internal Revenue Code in defining 'gross annual income' for purposes of § 548(a)(2).”). . See http://www.census.gov/hhes/www/ income/data/statemedian/. . The American Community Survey and Puer-to Rico Community Survey 2011 Subject Definitions (\"Community Survey Definitions”) are available at http://www.census.gov/acs/www/ Downloads/data_documentation/Subject Definitions/201 l_ACSSubjectDefinitions.pdf. .This position has its supporters. See Red-miles & Salahuddin, supra, at 57 (\"[F]ollow-ing the Wiegand approach to calculating current monthly income would result in an inconsistent ‘apples to oranges’ comparison of the debtor’s income figure based on gross business receipts with the Census Bureau’s median income figures, which are based on net income amounts.”); Robert M. Lawless, A New Recent Developments in the Bankruptcies of Small Businesses and Their Owners, 29 No. 1 Bankr.L. Letter 1, 6 (Jan. 2009) (\"[U]sing net business income as the definition of CMI matches up with the Census Bureau's definition of income, which is used as the benchmark for determining above-median and below-median debtors. The Wiegand approach of excluding business expenses creates a mismatch where a self-employed debtor compares his or her gross income to a statistical aggregate that represents a net income figure and artificially pushes self-employed debtors into five-year plans.” (footnote omitted)). . The Bankruptcy Code uses the term \"net income'' in § 521(a)(l)(B)(v) (debtor’s duty to file a \"statement of the amount of monthly net income, itemized to show how the amount is calculated”) and § 1205(b)(3)(ade-quate protection in a Chapter 12 case) and uses the term “gross income” in § 101(18)(A) (definition of family farmer); § 101(19A) (A) (ii) (definition of family fisherman); § 101(20) (definition of farmer); § 101(5IB) (definition of single asset real estate); §" }, { "docid": "4202993", "title": "", "text": "waived. In re McCloy, 296 F.3d 370, 375 (5th Cir.2002). Therefore, the burden is on the debtor to establish that he qualifies as a farmer for purposes of § 1307(e). Pursuant to § 101(20), the taxable year this Court must look at to evaluate the Debtor’s farmer status is 2002. The term “gross income” is not defined in the Bankruptcy Code. In re Way, 120 B.R. 81, 82 (Bankr.S.D.Tex.1990) (citing In Matter of Wagner, 808 F.2d 542 (7th Cir.1986)). Since gross income is not defined by the Bankruptcy Code, this Court equates gross income under § 101(20) with the definition of gross income contained in § 61 of the Internal Revenue Code. See, e.g., Way, 120 B.R. at 82. Pursuant to § 61(a)(3) of the Internal Revenue Code, “gross income means all income from whatever source derived, including ... [gjains derived from dealings in property.” 26 U.S.C. § 61(a)(3). According to the Debtor’s 2002 federal income tax return, as well as his testimony, the Debtor realized $38,000 in gain from the sale of a service station. This $38,000 is included in the Debtor’s gross income for purposes of evaluating whether the Debtor qualifies as a farmer under § 101(20). Id,.; see also Tollis v. Commissioner, 65 T.C.M. (CCH) 1951 (1993). This income does not qualify as income from a “farming operation”. See, e.g., In re Ross, 270 B.R. 710 (Bankr.S.D.Ill.2001); In re Van Fossan, 82 B.R. 77 (Bankr.W.D.Ark.1987). The calculation produces the following results : Total Farm Non-Farm Interest $ 1,645.00 0.00 $ 1,645.00 Rents $ 9,000.00 0.00 $ 9,000.00 Capital gain Gross farm income $38,000.00 $41,055.00 0.00 $41,055.00 $ $38,000.00 0 TOTAL $89,700.00 $41,055.00 $48,645.00 Percentage 100.00% 45.77% 54.23% The Debtor has suggested that such a technical application of “gross income” may be unfair. Although the Court does not believe that it can or should vary the plain language of the statute (See United States v. Ron Pair Enter., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)), the Court has also considered a non-technical application of the statute. In doing so, the Court has considered" }, { "docid": "17504417", "title": "", "text": "we must withdraw from the gross proceeds an amount sufficient to restore the capital value that existed at the commencement of the period under consideration. [Id. at 185, 38 S.Ct. at 469, 62 L.Ed. at 1059.] The general term “income” is not defined in the Internal Revenue Code. Section 61 of the Code, 26 U.S.C. § 61, defines “gross income” to mean all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, and similar items; (2) Gross income derived from- business; * * * * * * (5) Rents [.] * * * * * * Treasury Regulation § 1.61-3 (1976) explains “Gross income derived from business” and reads in part: (a) In general. In a manufacturing, merchandising, or mining business, “gross income” means the total sales, less the cost of goods sold, plus any income from in vestments and from incidental or outside operations or sources. Applying these definitions to the respective contentions made by the parties, it appears that the Government makes too broad a claim in asserting that gross receipts invariably measure income or gross income. Conversely, the appellant’s argument that all business expenses must be deducted from gross receipts to measure income or gross income defines income too narrowly. In count I (1969), Ballard’s gross receipts from his leasing operations of trucks and truck-trailers (City Leasing & Drayage Company) amounted to almost $39,000, and commissions and rentals received incident to his scrap business amounted to $1,180. These receipts clearly constituted items of gross income which Ballard was required to report pursuant to § 61 of the Code. However, the approximately $15,000 which Ballard received from the sales of salvage and motor vehicle parts did not entirely represent gross income for in the merchandising of scrap and motor vehicle parts, Ballard’s gross income excluded the cost of goods sold. Treas.Reg. § 1.61-3. However, since Ballard could not produce records of his salvage and parts business for 1969 and 1970, the Government had no means of showing Ballard’s cost of goods for those years. Gross receipts necessarily" }, { "docid": "21921496", "title": "", "text": "11-5 provides that Rule 102 applies in Chapter XI cases. . Rule 901(7) provides that the term “bankruptcy judge” means the referee of the court of bankruptcy, or the district judge when he acts in lieu of a referee. Thus the reference in Rule 102 to the referee includes the bankruptcy judge. . While neither the district court nor the treatise define “gross income”, we believe they would look to the gross revenues or receipts Mr. Beery received from his various pursuits, and not subtract certain expenses including cost of goods sold to obtain those figures. While this result is inconsistent'with the definitions offered by the accountants in this case, (see VIII R. 412-13), it does comport with the interpretation given certain cases in Collier’s treatise. Compare 1 Collier on Bankruptcy 624 (14th ed.) with In re Wright's Estate, 17 F.Supp. 908, 909 (W.D.La.); and In re Knight, 9 F.Supp. 502 (D.Conn.). Moreover, this result is supported by the reasons given for looking to gross revenues or receipts, which are’discussed in the text. We note that the definition of farmer has been amended under the new Bankruptcy Code to provide (11 U.S.C. § 101(17)): “[F]armer” means person that received more than 80 percent of such person’s gross income during the taxable year of such person immediately preceding the taxable year of such person during which the case under this title concerning such person was commenced from a farming operation owned or operated by such person; We do not apply this definition here nor do we seek to define the term “gross income” used therein. But see 26 U.S.C. § 61. As noted, this case is governed by the old Act, under which we conclude that gross revenues or receipts is a proper standard. . While this case interpreted a different definition of farmer, which was contained at § 75(r) of the Bankruptcy Act, 11 U.S.C. § 203, but was omitted from Title 11 prior to this action, the cases interpreting this section are regarded as authoritative in determining the source of the principal part of a debtor’s income under 11" }, { "docid": "12226450", "title": "", "text": "in the form of wages. His 1985 income tax return shows the Debtor’s income from farm income was $15,650.00, which, the Bank concedes, was over 50% of his total 1985 income. This Chapter 12 case was filed on December 9, 1986, and thus the 1985 tax year is the critical test year from determining eligibility to file a Chapter 12 petition. In re Pratt, 78 B.R. 277, 4 Mont.B.R. 402 (Bankr.Mont.1987) (determining eligibility under the gross income test requires a careful review of the debt- or’s tax and financial records for the prior tax year, by use of the term gross income as defined in the Internal Revenue Code). Considering then, that the Debtor has met the eligibility test of § 101(17), the Bank nevertheless argues that since the Debtor’s principal means for execution of the Plan after confirmation is through non-farm income from earnings as an equipment\" operator, the Debtor thereby loses the benefits of Chapter 12 since he will not be making payments due under the Plan solely from farming operations. It is undisputed that the Debtor during the 5 year term of the Plan will earn $30,000.00 to $35,000.00 a year as an equipment operator, while the ranch operation will produce about $15,000.00 annually. The annual payments due under the Plan require over $23,000.00 per year. The Bank thus argues that such is not the type of family operation which Congress had in mind when it passed Chapter 12. It must be noted that the Debtor does intend to continue raising hay and horses on the remaining ranch property, and thus continue on a part-time basis as a farmer. A decision addressing the issue is contained in the case of In re Tart, 73 B.R. 78, 81 (Bankr.E.D.N.C.1987), where the Court held: “The legislative history of Chapter 12 indicates that its primary purpose is to help family farmers continue farming. A conference committee report was prepared which worked out the differences between the versions of Chapter 12 which had been passed by the Senate and the House. * * * That statement declared that Chapter 12 ‘is" }, { "docid": "1119524", "title": "", "text": "be defined by Section 61 of the Internal Revenue Code.” In turn, 26 U.S.C. § 61(a) provides that “gross income means all income from whatever source derived.” Because the California statute refers to federal law to define gross income, it is appropriate to look to federal as well as state authorities for an understanding of the meaning of the term “income.” Title Ins. Co. v. State Bd. of Equalization, 4 Cal.4th 715, 723, 14 Cal.Rptr.2d 822, 842 P.2d 121 (1992). 26 U.S.C. § 61(a) states that “gross income means all income from whatever source derived, including ... (2) Gross income derived from business.” “[S]ince the origin of the federal income tax, cost of goods sold has been taken into account in computing business gross income.” Lawson v. Commissioner of Internal Revenue, 67 T.C.M. (CCH) at 3121-23, 1994 WL 273946 (1994). Treas.Reg. § 1.61-3(a), which was cited in the California Supreme Court case of Beamer v. Franchise Tax Bd., 19 Cal.3d 467, 476, 138 Cal.Rptr. 199, 563 P.2d 238 (1977), provides in relevant part: “In a manufacturing, merchandising, or mining business, ‘gross income’ means the total sales, less the costs of goods sold, plus any income from invest- merits and from incidental or outside operations or sources.” Thus, under state and federal tax law, costs of goods sold are deducted from revenues in determining business gross income. Applying the tax law definition of business gross income to the case at hand, the Debtors’ 1993 tax return shows “gross receipts” of $495,350 and “costs of goods sold” of $217,-800. This resulted in “gross profit” of $277,-550. “Other income” was $37,220, leading to “gross income” of $314,770. Arguably then, under the definition of “gross income” used for California tax purposes, the Debtors’ gross income in 1993 would limit the Debtors to a $75,000 homestead exemption. However, having established that “gross income” under California law in an income tax context may be defined as less than gross receipts (contrary to the ruling on review here), we may consider what the proper definition of “gross income” would be under California law in an exemption context." }, { "docid": "5635421", "title": "", "text": "business income (emphasis added). The italicized language is imposed as an additional requirement for tax-exempt institutions not faced by purely profit-oriented businesses. If there were any doubt after reading the language of the statute that disparate standards have been prescribed by Congress, one needs only to look at the pertinent regulations. The regulation governing business deductions for the profit-seeking corporation, 26 C.F.R. § 1.162-l(a), is stated in the disjunctive: “Business expenses deductible from gross income include the ordinary and necessary expenditures directly connected with or pertaining to the taxpayer’s trade or business.” (Emphasis added). In stark contrast to this relatively broad test, the regulation concerning the tax on unrelated business income provides: “§ 1.512(a)-l Definition. (a) In general. Except as otherwise provided ... section 512(a)(1) defines ‘unrelated business taxable income’ as the gross income derived from any unrelated trade or business regularly carried on, less those deductions allowed by chapter 1 of the Code which are directly connected with the carrying on of such trade or business____ To be deductible in computing unrelated business taxable income, therefore, expenses, depreciation, and similar items not only must qualify as deductions allowed by chapter 1 of the Code, but also must be directly connected with the carrying on of unrelated trade or business____to be ‘directly connected with’ the conduct of unrelated business for the purposes of section 512, an item of deduction must have proximate and primary relationship to the carrying on of that business.” (Emphasis added). Thus, the regulation does not merely reiterate the statutory language; it goes on to expressly state that the “directly connected with” language is an additional requirement imposed on tax-exempt organizations that is not imposed on organizations subject only to Chapter One of the Internal Revenue Code. The status of the requirement as an additional one is reinforced by its definition of the deduction as one that must have a “proximate and primary” relationship, which is a far cry from being merely “pertinent to” the business operation. I find no such direct proximate connection between the expense and the conduct of the unrelated commercial business at issue" }, { "docid": "1188583", "title": "", "text": "1969, Congress extended the tax on “unrelated business income” to social clubs. As to these organizations, however, Congress defined “unrelated business taxable income” to include income derived from investments. Our review of the present case must therefore be informed by two central facts. First, Congress intended that the investment income of social clubs should be subject to federal tax, and indeed Congress devised a definition of “unrelated business taxable income” with that purpose in mind. Second, the statutory scheme for the taxation of social clubs was intended to achieve tax neutrality, not to provide these clubs a tax advantage: Even the exemption for income derived from members’ payments was designed to ensure that members are not disadvantaged as compared with persons who pursue recreation through private purchases rather than through the medium of an organization. h-i I — I Petitioner’s principal argument is that it may deduct losses incurred through sales to nonmembers without demonstrating that these sales were motivated by an intent to profit. In the alternative, petitioner contends (and the Tax Court agreed) that if the Code does impose a profit-motive requirement, then that requirement has been satisfied in this case. We address these arguments in turn. A We agree with the Commissioner and the Court of Appeals that petitioner may use losses incurred in sales to nonmem-; bers to offset investment income only if those sales were motivated by an intent to profit. The statute provides that, as to social clubs, “the term ‘unrelated business taxable income’ means the gross income (excluding any exempt function income), less the deductions allowed by this chapter which are directly connected with the production of the gross income (excluding exempt function income). ” § 512(a)(3)(A) (emphasis added). As petitioner concedes, the italicized language limits deductions from unrelated business income to expenses allowable as deductions under Chapter 1 of the Code. See Brief for Petitioner 21-22. In our view, the deductions claimed in this case — expenses for food, payroll, and overhead in excess of gross receipts from nonmember sales — are allowable, if at all, only under § 162 of the" }, { "docid": "1119523", "title": "", "text": "connection with the amendment. The only relevant legislative history of the 1988 amendment is found in the 1987-88 California Legislative State Assembly File Analysis of the amendment. The first “Comment” states in part: “The laws exempting a judgment debt- or’s dwelling from execution are founded upon the public policy that the welfare of the state is best promoted by preserving a home where a person may be sheltered and live beyond the reach of economic misfortune.” (emph. supp.) When there is no controlling California authority to guide us, we may examine how the California courts would rule on the question. In re Pieri, 86 B.R. 208, 211 (9th Cir. BAP 1988). The Panel can consider, by way of analogy, how the State defines gross income for tax purposes. In examining California law relative to the imposition of taxes on business gross income, we note that the definition of gross income is not as absolute as presumed by the trial court in this case. Cal. Rev. & Tax.Code § 17071 (West 1994) states: “Gross income shall be defined by Section 61 of the Internal Revenue Code.” In turn, 26 U.S.C. § 61(a) provides that “gross income means all income from whatever source derived.” Because the California statute refers to federal law to define gross income, it is appropriate to look to federal as well as state authorities for an understanding of the meaning of the term “income.” Title Ins. Co. v. State Bd. of Equalization, 4 Cal.4th 715, 723, 14 Cal.Rptr.2d 822, 842 P.2d 121 (1992). 26 U.S.C. § 61(a) states that “gross income means all income from whatever source derived, including ... (2) Gross income derived from business.” “[S]ince the origin of the federal income tax, cost of goods sold has been taken into account in computing business gross income.” Lawson v. Commissioner of Internal Revenue, 67 T.C.M. (CCH) at 3121-23, 1994 WL 273946 (1994). Treas.Reg. § 1.61-3(a), which was cited in the California Supreme Court case of Beamer v. Franchise Tax Bd., 19 Cal.3d 467, 476, 138 Cal.Rptr. 199, 563 P.2d 238 (1977), provides in relevant part: “In a" }, { "docid": "22008189", "title": "", "text": "MEMORANDUM AND ORDER MacLAUGHLIN, District Judge. This is a suit for refund of taxes. Plaintiffs, husband and wife, assert that they overpaid taxes on self-employment income for 1973 and 1974 in the amounts of $302.52 and $498.66, respectively. They argue that the Internal Revenue Service incorrectly disallowed a deduction, representing a return of capital, from the gross income of their farm for each year. The Government has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). After considering the pleadings, memoranda, and arguments of the parties, the Court at a hearing on November 16, 1977, granted the Government’s motion. This memorandum explicates the reasons for decision outlined that day. The tax in question is assessed against self-employment income in order to finance Social Security benefits for the self-employed and their dependents. See, 26 U.S.C. § 1401. It is a tax on income and is levied, assessed, and collected with the regular income tax. The instant controversy concerns the amount of plaintiffs’ self-employment income subject to tax in 1973 and 1974. Section 1402 of the Internal Revenue Code of 1954 defines self-employment income: “The term ‘self-employment income’ means the net earnings from self-employment derived by an individual during any taxable year . . . .” 26 U.S.C. § 1402(b). Section 1402(a) defines “net earnings from self-employment” as “the gross income derived by an individual from any trade or business carried on by such individual, less the deductions allowed by this subtitle which are attributable to such trade or business . . . .” “Trade or business” has the same meaning here as it does in section 162 of the Code. 26 U.S.C. § 1402(c). Plaintiffs seek to deduct 70 percent of the amount of their gross income, claiming that that proportion of their income was derived from capital investment and should be deducted as a return of capital. Deductions are a matter of legislative grace, however, and it is the burden of the taxpayer to demonstrate that he is entitled to a deduction the Code provides. E. g., New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct." }, { "docid": "14493763", "title": "", "text": "The Internal Revenue Service included this amount in plaintiff’s gross income for 1958 as additional compensation. Plaintiff has paid a capital gains tax and resists the higher payment arising from defendant’s treatment of the sums involved as ordinary income. The Moving and Living Expense Policy Plaintiff contends that he should not be required to pay income taxes on amounts received by way of reimbursement for expenses resulting from a move undertaken primarily for the convenience of his employer. More specifically, plaintiff contends that these reimbursements are not income as defined by the Internal Revenue Code of 1954, § 61, 68A Stat. 17, in that these reimbursements do not constitute wages, incentive compensation, or any other form of income nor do they bear “the essential elements of income.” Alternatively, plaintiff contends that in the event these reimbursed expenses are income, then he is entitled to a deduction under sections 62 and 162 of the Code. 68A Stat. 17, 45. Section 61(a) (1) of the Internal Revenue Code of 1954 provides: (a) GeNeral DeetNItioN. — Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, and similar items; The Treasury Regulations on Income Tax (1954 Code), section 1.61-1 (a), state: “'Gross income means all income from whatever source derived, unless excluded by law.” 1CCH1966 Stand. Fed. Tax Rep. f 630. The Supreme Court has consistently given the term “gross income” as defined by the Revenue Code a broad construction in order “to tax all gains except those specifically exempted.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430 (1955). In Commissioner v. Smith, 324 U.S. 177 (1945), taxpayer’s employer gave him, as compensation for his services, an option to purchase stock and the Court, holding the option to be taxable income when exercised, stated that the term gross income as defined by the Revenue Act “is broad enough to include in taxable income any economic or financial 'benefit conferred on the employee as compensation, whatever the form or mode by which" }, { "docid": "4202992", "title": "", "text": "in bad faith. As such, this Court agrees with those courts that have concluded that the right to dismissal is not absolute when there is a pending motion to convert or there are allegations of fraud or bad faith. B. Farmer Status The Debtor also argues that his case can not be converted because he is a “farmer” for purposes of 11 U.S.C. § 1307(e). Section 1307(e) provides that “[t]he court may not convert a case under this chapter to a case under chapter 7, 11, or 12 of this title if the debtor is a farmer, unless the debtor requests such a conversion.” “Farmer” is defined as a: [P]erson that received more than 80 percent of such person’s gross income during the taxable year of such person immediately preceding the taxable year of such person during which the case under this title concerning such person was commenced from a farming operation owned or operated by such person. 11 U.S.C. § 101(20). An individual’s status as a farmer is an affirmative defense that may be waived. In re McCloy, 296 F.3d 370, 375 (5th Cir.2002). Therefore, the burden is on the debtor to establish that he qualifies as a farmer for purposes of § 1307(e). Pursuant to § 101(20), the taxable year this Court must look at to evaluate the Debtor’s farmer status is 2002. The term “gross income” is not defined in the Bankruptcy Code. In re Way, 120 B.R. 81, 82 (Bankr.S.D.Tex.1990) (citing In Matter of Wagner, 808 F.2d 542 (7th Cir.1986)). Since gross income is not defined by the Bankruptcy Code, this Court equates gross income under § 101(20) with the definition of gross income contained in § 61 of the Internal Revenue Code. See, e.g., Way, 120 B.R. at 82. Pursuant to § 61(a)(3) of the Internal Revenue Code, “gross income means all income from whatever source derived, including ... [gjains derived from dealings in property.” 26 U.S.C. § 61(a)(3). According to the Debtor’s 2002 federal income tax return, as well as his testimony, the Debtor realized $38,000 in gain from the sale of a service" }, { "docid": "16767546", "title": "", "text": "the date that the first payment is due under the plan will be applied to make payments under the plan. (2) For purposes of this subsection, “disposable income” means income which is reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependent of the debt- or; or (B) for the payment of expenditures necessary for the continuation, preservation, and operation of the debtor’s business. Subsection (b)(2) defines disposable income as “income which is received by the debt- or” subject to certain specified reductions. Neither this provision, nor the definitional provisions found elsewhere in the Code, define the term “income”. PCA asserts that this Court should look to the Tax Code for assistance in defining income. PCA points out that the Tax Code specifically exempts life insurance proceeds from gross income pursuant to 26 U.S.C. § 101(a)(1). That section states: Gross income does not include amounts received (whether in a single sum or otherwise) under a life insurance contract, if such amounts are paid by reason of the death of the insured. PCA concludes that by applying a tax definition the life insurance proceeds should not be considered income which is subject to the disposable income test and eventually subject to distribution to creditors. Through this conclusion PCA implies that FmHA has no interest in the funds and, therefore, can not prevail on a motion seeking disgorgement and distribution of the funds. PCA further supports its argument for applying a Tax Code definition of income by pointing out that a number of courts have adopted this standard when dealing with questions of income eligibility requirements for Chapter 12. See, e.g., In re Fogle, 87 B.R. 493, 496 (Bankr.N.D.Ohio 1988); In re Faber, 78 B.R. 934, 935 (Bankr.S.D.Iowa 1987); In re Shepherd, 75 B.R. 501, 504 (Bankr.N.D.Ohio 1987). PCA contends that it would be incongruous to apply differing standards for eligibility and for disposable income computations. Fur ther PCA contends that all disposable income determinations made under the nearly identical § 1325(b) disposable income requirement comport with the strict tax approach. FmHA responds to PCA’s" }, { "docid": "5570643", "title": "", "text": "Administrator. In the taxpayer’s returns, it computed its gross income on the basis of deducting the whole cost price, including the excess over the ceiling price, from the re-sale price. The deficiency tax was computed by the Commissioner on the basis of deducting from the taxpayer’s re-sale prices only the amounts of the authorized ceiling prices. The amount of the deficiency assessment for the tax years paid by the taxpayer and now sought to be recovered, is $17,312.02, with interest thereon from the date of payment, October 15, 1947. The sole question involved in this case is whether this action of the Commissioner in so determining the deficiency tax was legally correct. The District Court’s decision, in favor of the taxpayer and against the Commissioner, was, we think,- correct and must be affirmed. The Sixteenth Amendment to the Constitution of the United States reads: • “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” Internal Revenue Code: “Sec. 22. 'Gross Income. (a) General definition. ‘Gross income’ includes gains, profits, and income derived from salaries, wages, or compensation for personal service, of whatever kind and in whatever form paid, or from professions, vocations, trades, businesses, commerce, or sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. * * * ” 26 U.S.C. 1946 ed. § 22. Treasury Regulations 111, promulgated under the Internal Revenue Code: “Sec. 29.22(a)-5. Gross Income From Business. In the case of a manufacturing, merchandising, or min-' ing business, ‘gross income’ means the total sales, less the cost of goods sold, plus any income from investment and from incidental or outside operations or sources. -In determining the gross income subtractions should not be made for depreciation, depletion, selling expenses, or losses, or for items not" }, { "docid": "16540407", "title": "", "text": "A19: \"Section 62-. Adjusted Gross Income Defined “This section corresponds to section 22(n) of the 1938 Code. Paragraph (1) corresponds to paragraph (1) of section 22, (n) of the Code of 1939. No substantive change is made.” In Rev. Rul. 58-142, 1958-1 C.B. 147, the respondent ruled as follows : “In the case of an Individual, state income taxes, interest on state and Federal income taxes, and litigation expenses in connection with such income taxes, even where related to income derived from his trade or business and even though deductible under section 212 of the Internal Revenue Code of 1954 in determining taxable income as defined in section 63 of the Code, are not “attributable to a trade or business carried on by the taxpayer” and are, therefore, not deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code. Section 1.62-1 (d) of the Income Tax Regulations. However, a state tax on gross income directly attributable to a trade or business carried on by an individual, as distinguished from a state tax on net income (whether or not derived from the conduct of a trade or business)', is deductible for the purpose of determining adjusted gross income as defined in section 62(1) of the Code * * *. “Further, section 172(d)(4) of the Code provides that, in determining a net operating loss of a taxpayer other than a corporation, the deductions allowed by Chapter 1 of the Code, “which are not attributable to a taxpayer’s trade or business shall be allowed only to the extent of the amount of the gross income not derived from such trade or business.” Here also, state income taxes (except a state tax on gross income such as mentioned above), interest on state and Federal income taxes, and litigation expenses in connection with such taxes, even though related to income derived from a trade or business carried on by the taxpayer, are not “attributable to a taxpayer’s trade or business,” and under section 172(d) (4) of the Code are allowable as deductions in determining a net operating loss" }, { "docid": "17504416", "title": "", "text": "may be about a precise and scientific definition of “income,” it imports, as used here, something entirely distinct from principal or capital either as a subject of taxation or as a measure of the tax; conveying rather the idea of gain or increase arising from corporate activities. As was said in Stratton’s Independence v. Howbert, 231 U.S. 399, 415, 34 S.Ct. 136, 58 L.Ed. 285: “Income may be defined as the gain derived from capital, from labor, or from both combined.” Understanding the term in this natural and obvious sense, it cannot be said that a conversion of capital assets invariably produces income. If sold at less than cost, it produces rather loss or outgo. Nevertheless, in many if not in most cases there results a gain that properly may be accounted as a part of the “gross income” received “from all sources”; and by applying to this the authorized deductions we arrive at “net income.” In order to determine whether there has been gain or loss, and the amount of the gain, if any, we must withdraw from the gross proceeds an amount sufficient to restore the capital value that existed at the commencement of the period under consideration. [Id. at 185, 38 S.Ct. at 469, 62 L.Ed. at 1059.] The general term “income” is not defined in the Internal Revenue Code. Section 61 of the Code, 26 U.S.C. § 61, defines “gross income” to mean all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, and similar items; (2) Gross income derived from- business; * * * * * * (5) Rents [.] * * * * * * Treasury Regulation § 1.61-3 (1976) explains “Gross income derived from business” and reads in part: (a) In general. In a manufacturing, merchandising, or mining business, “gross income” means the total sales, less the cost of goods sold, plus any income from in vestments and from incidental or outside operations or sources. Applying these definitions to the respective contentions made by the parties, it appears that the Government makes" }, { "docid": "3238538", "title": "", "text": "his annual income so as to qualify as a “family farmer” under Chapter 12. The Faber court held the trucking income was primarily from the rendering of services and, therefore, deduction of the expenses from gross receipts was improper in determining “gross income” under what is now 11 U.S.C. § 101(18)(A). Therefore, it is appropriate to determine the primary source of Debtor’s income, and, if it was from rendering of services, deductions from gross receipts should not be allowed. The parties do not provide the Court with any evidence explaining what was the business of the S Corporation, Enterprise Ventures, Inc. or whether Debtor’s share of its 2004 losses comprised a majority or minority of Debtor’s gainful efforts on a time-spent basis for that year, although the Court notes from the California 2004 return that Debtor was only a 15% owner of the stock. There is very little evidence in the record, but what appears (such as W-2 forms) persuades the Court that Debtor’s gross annual income was primarily from services he rendered to Pepper-dine University and Claremont College as a consultant or professor. Although there is little guidance from California case law or legislative history citing Cal. Civ. Proc. § 704.730, there are other sources which may provide guidance and which persuade the Court that deduction of costs should not diminish gross receipts in determining “gross annual income” in our context. For example, California Family Code Section 4058, governing child support obligations, defines “annual gross income” in a variety of ways but makes a distinction between income based on commissions, salaries and royalties under subsection (a)(1) from “income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business...” under subsection (a)(2). Moreover, the statute has been interpreted to exclude unrealized appreciation of assets such as equity in a parent’s residence, in the definition of “annual gross income.” See e.g. In re Marriage of Henry, 126 Cal.App.4th 111, 119, 23 Cal.Rptr.3d 707 (2005). Clearly, “annual gross income” is not diminished by all possible deductions against the gross" }, { "docid": "3238537", "title": "", "text": "debtor who spends more in a year to acquire the inventory than he realizes on sale has no “income.” But, the court notes that in other contexts “gross income” has been defined very differently, such as in a service business other than mining, manufacturing and merchandising, where gross income equals gross receipts. See, e.g. Guy F. Atkinson Co. of California and Subsidiaries v. Commissioner of Internal Revenue, 82 T.C. 275, 298, 1984 WL 15538 (1984), citing Hahn v. Commissioner, 30 T.C. 195, 1958 WL 976 (1958) affd. 271 F.2d 739 (5th Cir.1959). Moreover, in the Hahn case, where the taxpayer was engaged in operating a blacksmith and welding shop, “gross income” was determined on a gross receipts basis, without deduction of cost of goods sold, because the taxpayer was “primarily engaged in repairing, plows, trailers...” Hahn, supra at 196-197 (emphasis added). Similarly, In In re Faber, supra, the debtor was not permitted to deduct “costs of operation” in the trucking segment of his business to reduce his gross non-farming income to less than half of his annual income so as to qualify as a “family farmer” under Chapter 12. The Faber court held the trucking income was primarily from the rendering of services and, therefore, deduction of the expenses from gross receipts was improper in determining “gross income” under what is now 11 U.S.C. § 101(18)(A). Therefore, it is appropriate to determine the primary source of Debtor’s income, and, if it was from rendering of services, deductions from gross receipts should not be allowed. The parties do not provide the Court with any evidence explaining what was the business of the S Corporation, Enterprise Ventures, Inc. or whether Debtor’s share of its 2004 losses comprised a majority or minority of Debtor’s gainful efforts on a time-spent basis for that year, although the Court notes from the California 2004 return that Debtor was only a 15% owner of the stock. There is very little evidence in the record, but what appears (such as W-2 forms) persuades the Court that Debtor’s gross annual income was primarily from services he rendered to Pepper-dine" } ]

[ { "docid": "4206069", "title": "", "text": "did not constitute a final expression. Admittedly, in determining whether or not the writing in issue constitutes a complete integration, a court should not restrict itself to a mere interpretation of the words of that writing. The writing itself is not conclusive in this respect, but it is an influential factor to be considered. Extrinsic evidence that may subsequently be barred for purposes of varying or contradicting a writing by the parol evidence rule, may be admissible for purposes of determining whether or not that writing was intended as a complete integration by the parties. 3 corbin, contracts §§ 581-82 (I960). However, utilizing the extrinsic evidence at issue for the limited purpose of determining the degree of integration, I can only conclude that the April 11th lease agreement constituted a complete integration of the parties’ agreement. The lease agreement of April 11, in addition to setting forth the amount of space leased at a specified price and incorporating a Services, Utilities and Maintenance Schedule, includes the following language: General Specifications, dated March 5, 1968, the Lessor’s offer dated March 8, 1968, and the Government’s acceptance letter dated April 11, 1968 are incorporated into and made a part hereof by reference. Such language creates a strong presumption that the parties intended the April 11th writing to be a complete integration of their agreement, a presumption unrebutted by the facts of their prior negotiations. The trial judge reached his determination that \"the lease agreement [did] carry with it a contractual obligation, on plaintiffs part, to furnish a cafeteria” principally on the basis of the prior March 7th letter from plaintiff to defendant, which was written in an attempt to have defendant reconsider plaintiffs original offer. In this letter, plaintiff listed ten \"Construction Features” and eleven \"Amenity Features” of its building. In addition to the \"Amenity Feature” providing for \"[c]omplete food service including restaurant, cafeteria, and drug store * * *” emphasized by the trial judge, these extra features included such generalities as: \"[s]hopping plaza for employee convenience and benefit”, \"[exceptionally high quality landscaping * * \"[qjuality carpeting throughout * * \"[a]ll electric" } ]

[ { "docid": "18004419", "title": "", "text": "oral assurances emanate from the very official who will have authority at the proper time, to sign the contract or grant. Id. Accordingly, the failure to comply with all agency procedures frustrates plaintiffs claim to an enforceable oral contract. 2. Parol evidence rule As an additional ground for summary judgment, defendant contends that the parol evidence rule bars plaintiffs claims based on the alleged oral agreement. The gravamen of defendant’s argument is that the alleged oral agreement was reached prior to the execution of the lease extension, which therefore merged all previous negotiations and served to express the parties’ final understanding. See Brawley v. United States, 96 U.S. (6 Otto) 168, 173, 24 L.Ed. 622 (1877). Plaintiff rejoins that the parol evidence rule is inapplicable because the oral agreement is a contract separate from the written lease extension. As the United States Court of Claims observed, the parol evidence rule is a rule of substantive law, not a rule of evidence. See David Nassif Assocs. v. United States, 214 Ct.Cl. 407, 419, 557 F.2d 249, 256 (1977). The parol evidence rule precludes the admission of prior or contemporaneous evidence seeking to add to or vary the terms of a written agreement, when the parties have adopted the written agreement as an expression of their final intent. Id. 214 Ct. Cl. at 419-20, 557 F.2d at 256. The parol evidence rule also prevents the introduction of prior or contemporaneous evidence inconsistent with the written agreement. Sylva-nia Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972); see also Beta Sys., Inc., 838 F.2d at 1183 (noting that court will not receive parol evidence seeking to change the terms of contract that is clear on its face); Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988) (noting that court will consider parol evidence only when contract is ambiguous). Whether an agreement is integrated, or not, is a question of law that may be resolved through summary judgment. See Sylvania Elec. Prods., 198 Ct.Cl. at 128 n. 9, 458 F.2d at 1006 n. 9. In this" }, { "docid": "18004420", "title": "", "text": "256 (1977). The parol evidence rule precludes the admission of prior or contemporaneous evidence seeking to add to or vary the terms of a written agreement, when the parties have adopted the written agreement as an expression of their final intent. Id. 214 Ct. Cl. at 419-20, 557 F.2d at 256. The parol evidence rule also prevents the introduction of prior or contemporaneous evidence inconsistent with the written agreement. Sylva-nia Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972); see also Beta Sys., Inc., 838 F.2d at 1183 (noting that court will not receive parol evidence seeking to change the terms of contract that is clear on its face); Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988) (noting that court will consider parol evidence only when contract is ambiguous). Whether an agreement is integrated, or not, is a question of law that may be resolved through summary judgment. See Sylvania Elec. Prods., 198 Ct.Cl. at 128 n. 9, 458 F.2d at 1006 n. 9. In this case the parties reached the alleged oral understanding prior to the execution of the written lease extension. To avoid the parol evidence rule, the oral agreement can neither add to nor modify the terms of the written lease extension. However, the oral understanding outlined by plaintiff modifies the written terms of the lease extension in that it affects the period of occupancy. The written agreement states that the period of occupancy will be from March 1, 1992, to February 28, 1994. The oral agreement purports to require the USPS to vacate the premises by May 31, 1993, nine months before the written lease extension expires. Seeking to reduce the period of occupancy from 24 months to 15 months is a clear modification. The parol evidence rule therefore is applicable. When construing a contract, the court seeks to ascertain the objective intent of the parties, thus “mental reservations are legally irrelevant.” David Nassif Assocs., 214 Ct.Cl. at 422, 557 F.2d at 257. The written lease extension agreement is clear, specific, and unambiguous. As a result, the" }, { "docid": "7383841", "title": "", "text": "the Amendment A00024 did not constitute a constructive change. E. The Second Amended Complaint Count II Alleged A “Breach [of Contract, Based On] Cardinal Change.” Sec. Am. Compl. ¶¶ 111-34. Assuming arguendo that, the court were to grant Metcalfs May 17, 2010 Motion to file the Second Amended Complaint, Metcalf still would not prevail on the merits of Count II (“Breach of Contract/Cardinal Change”). As a matter of law, a cardinal change arises only when “the Government effects a change in the work so drastic that it effectively requires the contractor to perform duties materially different from those in the original bargain.” Int'l Data Prods., 492 F.3d at 1325 (Fed.Cir.2007) (emphasis added); see also Krygoski Constr. Co., Inc. v. United States, 94 F.3d 1537, 1543 (Fed.Cir.1996) (“[A] ‘cardinal change’ is a drastic modification beyond the scope of the contraet[.]”). The underlying rationale of a cardinal change claim is “ ‘to provide a breach remedy for contractors who are directed by the [Government to perform work which is not within the general scope of the contract’ and exceeds the scope of the contract’s change clause.” PCL Const. Servs., Inc. v. United States, 47 Fed.Cl. 745, 804 (2000) (quoting General Dynamics Corp. v. United States, 585 F.2d 457, 462 (Ct.Cl.1978)). A cardinal change, however, does not arise if “[t]he contract itself explicitly provide[s] that discrepancies, omissions, conflicts and design changes would, or likely, would arise, and that the parties would address such issues during contract performance.” Id. at 805. It is well established that “[e]ach [cardinal change] ease must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.” Wunderlich Contracting Co. v. United States, 351 F.2d 956, 966 (Ct.Cl.1965). For example, where the contractor is asked to build the same building that was initially contracted for, there is typically no cardinal change. Id. (“Plaintiff contracted to build a reinforced concrete hospital building on a certain site at Fort Howard, Maryland, and that is exactly what it" }, { "docid": "12454810", "title": "", "text": "are nonetheless not parties to that agreement. Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Cross-Motion for Partial Summary Judgment (hereinafter “Pls.’ Reply”) at 4. For example, many contracts involve third-party beneficiaries, who benefit from the contract but are not actually parties to it. See, e.g., Montana v. United States, 124 F.3d 1269 (Fed.Cir.1997). Ultimately, using the tools of contract interpretation, the Court must find that Defendant has not met its burden of proof on the element of competent parties. First, the court must study the plain meaning of the contract. Aleman Food Servs. Inc. v. United States, 994 F.2d 819, 822 (Fed.Cir.1993); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). The purpose of this study is to determine the intent of the parties at the time that the contract was made; this controls the contract’s interpretation. Safeco Credit v. United States, 44 Fed.Cl. 406, 419 (1999). Delving into the parties’ intentions can best be done by studying the agreement between the parties. Greco v. Deft of the Army, 852 F.2d 558, 560 (Fed.Cir.1988). However, the contract “must be considered as a whole and interpreted so as to harmonize and give meaning to all of its provisions.” Victory Carriers, Inc. v. United States, 199 Ct.Cl. 410, 467 F.2d 1334, 1342 (1972); accord B.D. Click Co. v. United States, 222 Ct.Cl. 290, 614 F.2d 748, 753 (1980). Once the MOU is examined, it becomes clear that the IFPTE was not competent to bargain away the rights of all Plaintiffs, and thus no accord and satisfaction could exist with regard to the 75 Plaintiffs who had not previously been involved in the grievance and litigation procedures as GS-12 employees. First, 111 of the MOU clearly states that “the terms, conditions and obligations of the parties set forth in this MOU are intended to apply to the court cases Bow and Abundis ... and to the FLSA grievances filed in the IFPTE bargaining units.” Def.’s App. at 3 (emphasis added). The use of the phrase “the FLSA grievances filed” is telling, since “the” is commonly used to refer to specific items, and" }, { "docid": "13539059", "title": "", "text": "for convenience, based upon the improper termination counts (Counts IV to VI). PCL’s allegations in the two complaints stem from three different time periods during the course of the planning, construction, and completion of the Hoover Dam Visitor Center and Parking Structure: the preaward design and bidding process, the construction process, and the project close-out. The court will address each of PCL’s allegations that arise from these various phases of the project in a chronological order, thereby deciding the counts in Case No. 95-666C (focusing on preaward, bidding and construction) and then the counts in Case No. 96-442C (focusing on close-out, default termination, liquidated damages, and retainage). PCL’s brief states that “any argument by USBR that PCL contributed to job delays should be rejected by this Court due to an absence of proof.” In the absence of proof that the plaintiffs job delays were for an unreasonable length of time and were caused by the government, there can be no finding of liability. See Mega Constr. Co., Inc. v. United States, 29 Fed.Cl. 396, 424-25 (1993); see also William A. Smith Contracting Co. v. United States, 155 Ct.Cl. 1, 9-10, 292 F.2d 847, 852 (1961) (discussing several cases). “It is incumbent upon the plaintiffs to show the nature and extent of the various delays for which damages are claimed and to connect them to some act of commission or omission on defendant’s part.” Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 200, 351 F.2d 956, 969 (1965). Plaintiff, therefore, bears this burden of proof. I. Counts I, II and IV (Case No. 95-6660 The court first addresses PCL’s causes of action that rely primarily upon preaward events. PCL offers a number of legal theories related to the preaward events in Counts I, II and IV. PCL’s misrepresentation causes of action are premised upon the contention that USBR fraudulently induced PCL into bidding on the contract, knowing that PCL would encounter many “hidden” design defects and differing site conditions, which USBR was not inclined to correct prior to award because of USBR’s haste to begin the construction process. PCL alleges" }, { "docid": "931389", "title": "", "text": "Federal Defendants’ motion to strike Mr. Sisco’s declaration is DENIED. The Federal Defendants also move to strike the declaration of Ms. Carla Cloer, who provides information regarding interpretation of the parties settlement agreement in Tulare County Audubon Society v. United States, CV-F-90-564 EDP (E.D.Cal.). The Federal Defendants argue that the settlement agreement contains an integration clause, limiting judicial review to the four corners of the settlement document. Plaintiff asserts that California provides the rule of decision in interpreting the settlement agreement, although generally federal law controls the interpretation of a contract where the United States is a party. United States v. Seckinger, 397 U.S. 203, 209, 90 S.Ct. 880, 884, 25 L.Ed.2d 224 (1970); Kennewick Irrigation District v. United States, 880 F.2d 1018, 1032 (9th Cir.1989). Under either standard, parol evidence is inadmissible to contradict a clear and unambiguous provision of a contract, where the parties intended that the written contract be the complete and final expression of their agreement. Compare, U.S. v. Triple A Machine Shop, Inc., 857 F.2d 579, 585 (9th Cir.1988) (federal law); with, Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641 (1968). Parol evidence is admissible to explain ambiguous terms in an integrated agreement. Greco v. Department of the Army, 852 F.2d 558, 560 (Fed.Cir.1988). The settlement agreement in Tulare County Audubon Society v. United States, CV-F- 90-564-EDP (E.D.Cal.), states that defendants agreed: ... that prior to the decision to re-offer the Fish Timber Sale, the Forest Service will prepare an environmental document (a new environmental assessment or an environmental impact statement, as appropriate) for the Fish Timber Sale area which will include analysis of the surrounding relevant areas of the Sequoia National Forest. Defendants also agreed that: The environmental document prepared for the Fish Timber Sale will comply with the National Environmental Policy Act and will, at a minimum, contain a discussion of all issues set forth in Sections P.3.a. through P.3.p. and Sections Q.3.h. of the Sequoia National Forest Mediated Land Management Plan 1990 Settlement Agreement. Plaintiff submits the declaration of" }, { "docid": "12454809", "title": "", "text": "a federal employee union can act on behalf of all bargaining unit employees, and another to say that the union has done so in a given instance.” Pis.’ X-Mot. at 18; see, e.g., Buckley v. Gallo Sales Co., 949 F.Supp. 737, 743 (N.D.Cal.1996) (union acting on behalf of an individual and not the entire bargaining unit). Defendant also argues that, because certain provisions of the MOU apply to all of the Plaintiffs, all of the Plaintiffs are bound by IFPTE’s agreement. Def.’s Reply at 3-4. Defendant is correct in its assessment that certain terms in the MOU affect all Plaintiffs. For example, 1112 establishes an award incentive program and states that “the persons who occupy the positions or who have occupied the positions identified in Attachment D shall be FLSA exempt.” Def.’s App. at 10. Since all Plaintiffs hold or have held positions listed in Attachment D, the provisions of 1112 clearly apply to them. Id. at 25; Pls.’ Resp. to DPFUF 113, at 2. However, as Plaintiffs note, an agreement can “affect” individuals who are nonetheless not parties to that agreement. Plaintiffs’ Reply to Defendant’s Response to Plaintiffs’ Cross-Motion for Partial Summary Judgment (hereinafter “Pls.’ Reply”) at 4. For example, many contracts involve third-party beneficiaries, who benefit from the contract but are not actually parties to it. See, e.g., Montana v. United States, 124 F.3d 1269 (Fed.Cir.1997). Ultimately, using the tools of contract interpretation, the Court must find that Defendant has not met its burden of proof on the element of competent parties. First, the court must study the plain meaning of the contract. Aleman Food Servs. Inc. v. United States, 994 F.2d 819, 822 (Fed.Cir.1993); Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991). The purpose of this study is to determine the intent of the parties at the time that the contract was made; this controls the contract’s interpretation. Safeco Credit v. United States, 44 Fed.Cl. 406, 419 (1999). Delving into the parties’ intentions can best be done by studying the agreement between the parties. Greco v. Deft of the Army, 852 F.2d 558, 560 (Fed.Cir.1988)." }, { "docid": "21126685", "title": "", "text": "fact that both parties have moved for summary judgment does not relieve the court of its responsibility to determine the appropriateness of summary disposition. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987)). Summary judgment will not necessarily be granted to one party or another simply because both parties moved for summary judgment. Corman v. United States, 26 Cl.Ct. 1011, 1014 (1992) (citing LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692-93 (4th Cir.1969), cert. denied, 393 U.S. 1083, 89 S.Ct. 866, 21 L.Ed.2d 776 (1969)). A cross-motion is a party’s claim that it alone is entitled to summary judgment. A Olympic Forwarder, Inc., v. United States, 33 Fed.Cl. 514, 518 (1995). It therefore does not follow that if one motion is rejected, the other is necessarily supported. Id. Rather, the court must evaluate each party’s motion on its own merit and resolve all reasonable inferences against the party whose motion is under consideration. Id. (citing Corman, 26 Cl.Ct. at 1014). This court has jurisdiction over plaintiffs complaint pursuant to the Contract Disputes Act, 41 U.S.C. § 609(a) (1994). The parties present this court with two issues for decision: (1) which party is obligated under the lease to pay the SWSC; and (2) whether defendant’s rent payments for June and July 1996 were late under the terms of the lease. I. Solid Waste Service Charge The first issue presents the court with questions of contract interpretation. The court may rule on such interpretations as a matter of law. National Rural Utilities Coop. Finance Corp. v. United States, 14 Cl.Ct. 130, 136 (1988), aff'd, 867 F.2d 1393 (Fed.Cir.1989). Contract interpretation ordinarily begins with the plain meaning of the provision in question. S.W. Aircraft Inc. v. United States, 213 Ct.Cl. 206, 551 F.2d 1208, 1212 (Ct.Cl.1977). The court must construe the contract by its plain and unambiguous language. National Rural, 14 Cl.Ct. at 136. “The language of a contract must be given that meaning that would be derived from the contract by a reasonable intelligent" }, { "docid": "7890198", "title": "", "text": "Servs., Inc. v. United States, 47 Fed.Cl. 745, 804 (2000) (emphasis added) (internal quotation marks omitted) (quoting General Dynamics Corporation, 585 F.2d at 462). Because every situation in which parties enter into a contractual relationship is unique, there is no definitive test for determining whether a change is beyond the scope of a particular contract. See ThermoCor, 35 Fed.Cl. at 490 (citing Edward R. Marden Corp. v. United States, 194 Ct.Cl. 799, 442 F.2d 364 (1971)). Instead, ‘“[e]ach case must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.’” Id. (quoting Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 966 (1965)). Indeed, a fact-intensive inquiry regarding both the events that led to the excess work and the effect of that work is required. Id. In addition, the contractor must prove specific facts in support of its allegation of a cardinal change. PCL Construction Services, 47 Fed.Cl. at 804. Factors such as changes in the nature, magnitude, and total costs of work to be performed under a contract are helpful guideposts for determining whether a contract modification rises to the level of a “cardinal change.” See Becho, 47 Fed.Cl. at 601. Those factors are especially helpful in cases in which a challenged contract includes a standard changes clause which provides little specific guidance regarding changes, for example, in cases in which the clause states only that contract modifications are permissible so long as they fall within the scope of the parties’ agreement. See, e.g., Becho, 47 Fed.Cl. at 597, 601; ThermoCor, 35 Fed.Cl. at 490. Here, the Changes clause of the contract is not worded broadly, but instead, sets forth specific parameters under which changes to the parties’ agreement may be ordered. According to the plain language of § H.8.a, the $2500 threshold is key to the determination of whether a particular change may be ordered unilaterally. Def.’s App. at 66. Because the Changes clause is so specifically crafted, the most" }, { "docid": "7393163", "title": "", "text": "matter, the court turns to the substantive issues raised in the parties’ cross-motions for summary judgment. B. Standard of Contract Interpretation Issues of contract interpretation, such as the issues presented by the parties in the matter at hand, raise questions of law that are uniquely appropriate for summary judgment. See Varilease Tech. Group, Inc. v. United States, 289 F.3d 795, 798 (Fed.Cir. 2002); Mays v. United States Postal Service, 995 F.2d 1056, 1059 (Fed.Cir.1993) (citing Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988)). Interpretation of a contract, including a contract’s specifications and drawings, is a matter to be resolved by the court. P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir. 1984). Contract interpretation begins with the plain language of the contract. Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (citation omitted). In interpreting the language of a contract, its terms must be accorded their plain and ordinary meaning. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed.Cir.1998). If the language of the contract is unambiguous, the court must accept its plain meaning. Triax Pacific, Inc. v. West, 130 F.3d 1469, 1473 (Fed.Cir.1997). A contract term is unambiguous when there is only one reasonable interpretation. Bristol-Myers Squibb Co. v. United States, 48 Fed.Cl. 350, 355 (2000) (citations omitted). When the contract language is unambiguous, the court’s inquiry is at an end, and the plain language of the contract is controlling. Id. The mere fact that the parties may disagree with regard to the interpretation of a specific provision does not, in and of itself, render that provision ambiguous. See Cmty. Heeding & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed.Cir. 1993); Brunswick Corp. v. United States, 951 F.2d 334, 337 (Fed.Cir.1991) (citation omitted). If, however, an ambiguity arises when interpreting a contractual provision, the proper interpretation is the reasonable and internally consistent one. See Brunswick Corp., 951 F.2d at 337. A contract is ambiguous where there are two reasonable interpretations that are consistent with the contract language. Community Heating, 987 F.2d at 1579 (citations omitted). The joint intent" }, { "docid": "7393162", "title": "", "text": "1, 1998. This denial grants the court jurisdiction to hear this lawsuit. See Overall Roofing & Constr., Inc. v. United States, 929 F.2d 687, 689 (Fed.Cir.1991). The CDA provides that a contracting officer’s final decision must be in writing and must be mailed or otherwise furnished to the contractor. 41 U.S.C. § 605(a). A claim was properly submitted to the contracting officer and Conner received a copy of the contracting officer’s September 1, 1998 final decision on September 4, 1998. Conner’s instigation of this lawsuit on August 26, 1999 also satisfies the one-year statute of limitations within which a party can commence a lawsuit once a contracting officer has denied a contractor’s claim. 41 U.S.C. § 609(a)(3). It is important to note that findings of fact made by the contracting officer are neither binding upon the court, nor are they evidence. Wilner v. United States, 24 F.3d 1397, 1401 (Fed.Cir.1994). This court engages in a de novo review of the claim. 41 U.S.C. § 609(a)(3). Thus, having addressed the jurisdictional issues that pertain to this matter, the court turns to the substantive issues raised in the parties’ cross-motions for summary judgment. B. Standard of Contract Interpretation Issues of contract interpretation, such as the issues presented by the parties in the matter at hand, raise questions of law that are uniquely appropriate for summary judgment. See Varilease Tech. Group, Inc. v. United States, 289 F.3d 795, 798 (Fed.Cir. 2002); Mays v. United States Postal Service, 995 F.2d 1056, 1059 (Fed.Cir.1993) (citing Greco v. Dep’t of the Army, 852 F.2d 558, 560 (Fed.Cir.1988)). Interpretation of a contract, including a contract’s specifications and drawings, is a matter to be resolved by the court. P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir. 1984). Contract interpretation begins with the plain language of the contract. Gould, Inc. v. United States, 935 F.2d 1271, 1274 (Fed.Cir.1991) (citation omitted). In interpreting the language of a contract, its terms must be accorded their plain and ordinary meaning. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed.Cir.1998). If the language of the contract" }, { "docid": "11314602", "title": "", "text": "interpreting these provisions in their larger contractual context, rather than in isolation.” Keeter, 79 Fed.Cl. at 257 (citing Hol-Gar, 169 Ct.Cl. at 394-96, 351 F.2d at 979). The court “must interpret the contract in a manner that gives meaning to all of its provisions and makes sense.” McAbee Constr., Inc. v. United States (McAbee), 97 F.3d 1431, 1435 (Fed.Cir.1996) (citing Hughes Commc’ns Galaxy, Inc. v. United States, 998 F.2d 953, 958 (Fed.Cir.1993)). The plain language of a contract is viewed as controlling and unambiguous if the language is amenable to only one reasonable intex*pretation. Triax Pac., Inc. v. West, 130 F.3d 1469, 1473 (Fed.Cir.1997). A contract will be deemed ambiguous if it is amenable to two different reasonable interpretations. Cmty. Heating & Plumbing Co. v. Kelso, 987 F.2d 1575, 1579 (Fed.Cir.1993). “However, contracts are not necessarily rendered ambiguous by the mere fact that the parties disagree as to the meaning of their provisions.” Id. at 1578. When interpreting an ambiguous contract, the court looks to the intent of the parties. Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed.Cir.1986); see Highway Prods., Inc. v. United States, 208 Ct.Cl. 926, 938, 530 F.2d 911, 917 (1976) (“Where there is an ambiguity in the contract instrument, it is appropriate to go outside the formal documents and ascertain the intent of the parties_”). C. Damages for Breach of Contract to Restore Property to Pre-Lease Condition As the coui’t finds, infra Part III.B.2, the Lease imposed a duty on the government to x’estore the Propex-ty to its pre-Lease eondi- • tion. Damages in this case turn on the interpretation of a pi’ovision in the Lease concerning the restoi’ation by defendant of the Property to its pre-Lease condition. The coui-t discusses the application of the measure of damages below in Pai't III.C. III. Discussion A. The Lease Terms The parties have included the Lease terms in defendant’s Facts and plaintiffs Facts respectively. Pages 1-46 of Exhibit D to plaintiffs Facts and pages 1-46 of Exhibit 3 to defendant’s Facts contain a standai’d lease form and attachments incox-porated into the Lease by i-efei’ence." }, { "docid": "13539158", "title": "", "text": "required written certification. With a substantial number of deficiencies uncorrected, PCL never returned to the site after receipt of the consolidated deficiency listing. Although some of PCL’s subcontractors addressed certain remaining deficiency items after PCL’s withdrawal, all work ceased in November 1995 at PCL’s direction. Thereafter, USBR terminated PCL for default. Because USBR never accepted the project as complete and PCL did not fulfill its obligations necessary to entitle it to such a determination, plaintiffs argument fails. The termination for default did not occur after acceptance because there was none. PCL’s second argument regarding the propriety of the termination for default asks the court to adopt a rule that a construction contractor cannot be terminated for default after in fact substantially completing the contract. It is true that some cases in the Board of Contract Appeals have allowed a construction contractor to avoid a termination for default because it had substantially performed the contract. See Metzger Towing, Inc., E.N.G.B.C.A. No. 5862, 94-2 B.C.A. (CCH) ¶26,651 (1994); Wolfe Constr. Co., E.N.G.B.C.A. Nos. 3607-3611, 3853, 4752, 84-3 B.C.A. (CCH) ¶ 17,701 at 88,329 (1984); Cosmos Eng’rs, Inc., A.S.B.C.A. No. 19780, 77-2 B.C.A. (CCH) ¶12,713 at 61,710-11 (1977); Edward S. Good, Jr., A.S.B.C.A. No. 10514, 66-1 B.C.A. (CCH) ¶5362 at 25,157 (1966). The doctrine of substantial performance, however: [s]hould not be carried to the point where the non-defaulting party is compelled to accept a measure of performance substantially less than had been bargained for. Substantial performance “is never properly invoked unless the promisee has obtained to all intents and purposes all benefits which he reasonably anticipated receiving under the contract.” Blinderman Constr. Co. Inc. v. United States, 39 Fed.Cl. 529, 572 (citing Franklin E. Penny Co. v. United States, 207 Ct.Cl. 842, 857-58, 524 F.2d 668, 677 (quoting In re Kinney Aluminum Co., 78 F.Supp. 565, 568 (S.D.Cal.1948)), aff'd, 178 F.3d 1307 (Fed.Cir. 1998) (table)); see also M.C. & D. Capital Corp. v. United States, 948 F.2d at 1256. In the instant case, the legally supportable and sensible approach appears to be to simply follow the language of the FAR and the contract" }, { "docid": "13539136", "title": "", "text": "v. United States, 173 Ct.Cl. at 194, 351 F.2d at 966. “Each case must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.” Wunderlich Contracting Co. v. United States, 173 Ct.Cl. at 194, 351 F.2d at 966 (citing Saddler v. United States, 152 Ct.Cl. at 561, 287 F.2d at 413, 414). Moreover, the contractor must prove facts with specificity that support its allegations that a cardinal change occurred. See S.J. Groves & Sons Co. v. United States, 228 Ct.Cl. at 604, 661 F.2d at 174 (contractor failed to make “a clear showing of cardinal change”); Paragon Energy Corp. v. United States, 229 Ct.Cl. 524, 527, 1981 WL 22045 (1981) (contractor’s “conelusory assertion” that a cardinal change had occurred found insufficient to meet its burden). PCL has alleged “substantial changes” to PCL’s duties and the physical features of the project, along with descriptions concerning the difficulty and duration of its effort, in an attempt to show that a cardinal change occurred. PCL claims that the “physical changes” to the project, primarily changes to the foundation of the Parking Structure, constituted a cardinal change. One of PCL’s own employees, their construction manager, however, directly contradicted this position at trial by stating that there was not a “dramatic change in the use and function of the building or the size of the building” actually built compared to the building PCL had originally contracted to build. Even PCL’s expert conceded at trial that the physical nature of the project was not “cardinally changed” and that change to the physical facilities is the relevant inquiry. PCL’s contention that reconfigurations of the drag tie, nine of forty-one level 3A footings, a transition wall, and the pedestrian ramp footings constituted a different “nature” of work than required in the original contract was not supported at trial. The contract itself explicitly provided that discrepancies, omissions, conflicts and design changes would, or likely, would arise, and that the parties would address such issues" }, { "docid": "7890197", "title": "", "text": "a contractor to perform in ways that far exceed those contemplated in the original contract. Becho, 47 Fed.Cl. at 600 (citing Alliant Techsystems, 178 F.3d at 1276). Accordingly, “[t]he cardinal change doctrine asks whether a modification exceeds the scope of the contract’s changes clause____” AT & T Commc’ns, Inc. v. Wiltel, Inc., 1 F.3d 1201, 1205 (Fed.Cir. 1993); Gen’l Dynamics Corp. v. United States, 218 Ct.Cl. 40, 585 F.2d 457, 462 (1978) (stating that “[t]he changes clause vests in the contracting officer discretion to make changes within the general scope of the contract. Such changes may be by agreement or unilateral order. An order change determined to be outside the scope of the contract is an abuse of the contract right and is a cardinal change”) (internal quotations and citations omitted). The chief purpose of the doctrine is “to provide a breach remedy for contractors who are directed by the government to perform work which is not within the general scope of the contract and exceeds the scope of the contract’s changes clause.” PCL Constr. Servs., Inc. v. United States, 47 Fed.Cl. 745, 804 (2000) (emphasis added) (internal quotation marks omitted) (quoting General Dynamics Corporation, 585 F.2d at 462). Because every situation in which parties enter into a contractual relationship is unique, there is no definitive test for determining whether a change is beyond the scope of a particular contract. See ThermoCor, 35 Fed.Cl. at 490 (citing Edward R. Marden Corp. v. United States, 194 Ct.Cl. 799, 442 F.2d 364 (1971)). Instead, ‘“[e]ach case must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.’” Id. (quoting Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 966 (1965)). Indeed, a fact-intensive inquiry regarding both the events that led to the excess work and the effect of that work is required. Id. In addition, the contractor must prove specific facts in support of its allegation of a cardinal change. PCL Construction Services, 47" }, { "docid": "18004413", "title": "", "text": "Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984); Shearson Lehman Hutton, Inc. v. United States, 24 Cl.Ct. 770, 773 (1991) (“[IJssues ... [that] are solely matters of contract interpretation ... are consequently appropriate subjects for summary judgment.”), ajfd 983 F.2d 1086, 1992 WL 321020 (Fed.Cir. 1992); see also Government Sys. Advisors, Inc. v. United States, 847 F.2d 811, 812 n. 1 (Fed.Cir.1988) (“Contract interpretation is a matter of law and thus is amenable to decision on summary judgment.”). When seeking to resolve a question of contract interpretation, the court’s primary goal is to ascertain the intent of the contracting parties. Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988) (citing S. Williston, A Treatise an the Law of Contracts § 601 (3d ed. 1961)). To avoid conflicts between provisions within the contract, an agreement should be read as a whole. Reliance Ins. Co. v. United States, 931 F.2d 863, 865 (Fed.Cir.1991); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 395, 351 F.2d 972, 979 (1965). While the construction of an unambiguous writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd, 667 F.2d 160, 169 (D.C.Cir.1981). 1. Failure to comply with USPS regulations Defendant argues that the terms of the alleged oral agreement between the USPS and plaintiff are not binding on the Government because they are contrary to USPS leasing regulations. Plaintiff contends that the oral agreement is a valid contract separate from the lease extensions, so that USPS regulations concerning leases do not control. An examination of the pertinent USPS regulations indicates that plaintiffs position is untenable. USPS Procurement Manual, § 11.4.1 (Feb. 1, 1992), defines a lease as “any written agreement by which the rights of use and occupancy of real estate are transferred from the owner to the Postal Service for a specified period of time in return for a specified rental amount.” USPS Realty Acquisition and Management Handbook, § 314 (Feb. 15, 1991), notes that in" }, { "docid": "22250846", "title": "", "text": "of the Army, 852 F.2d 558, 560 (Fed.Cir.1988). We review the Board’s determinations of law for correctness, without deference to the Board’s decision. See Perry v. Department of the Army, 992 F.2d 1575, 1578 (Fed.Cir.1993) (“The construction of [the disputed] term in the agreement is a question of law that this court reviews de novo.”) In interpreting a written agreement, we first ascertain whether the written understanding is clearly stated and was clearly understood by the parties. If ambiguity is found, or if ambiguity has arisen during performance of the agreement, the judicial role is to implement the intent of the parties at the time the agreement was made. In so doing the words used by the parties to express their agreement are given their ordinary meaning, unless it is established that the parties mutually intended and agreed to some alternative meaning. Perry, 992 F.2d at 1579; Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 351 F.2d 972, 976 (1965). The paramount focus is the intention of the parties at the time of contracting; that intention controls in any subsequent dispute. Greco, 852 F.2d at 560 (“Our task [in construing the settlement agreement] is to determine the intent of the parties at the time they contracted, as evidenced by the contract itself.”) When an employee voluntarily resigns in exchange for purging of the records that show the prior adverse action, the employee’s goal, to which the agency has agreed, is to eliminate this information as it may affect future employment with the government or elsewhere. As was explained in Thomas v. Department of Housing and Urban Development, 124 F.3d 1439, 1442 (Fed.Cir.1997), “[t]he agency’s agreement to deny to potential future employers, including other agencies of the United States Government, the truth about Thomas’s performance at HUD was the major benefit that Thomas received in exchange for agreeing to resign from his position.” By correcting only those files in the hands of the Navy, and by retaining references in official government personnel files to the action that was subsequently revoked, Petitioner was denied the benefit of her agreement. Accepting that" }, { "docid": "22250845", "title": "", "text": "inquiry, Petitioner learned that records with the Office of Personnel Management (OPM) and the Defense Finance and Accounting Service (DFAS) contain references to the removal action. Petitioner brought an action to enforce the settlement agreement. The Board accepted the government’s position that the reference in the settlement agreement to Petitioner’s “official personnel file” means only the personnel file in the possession of the Navy, and does not include the personnel files of OPM and DFAS. Thus the Board denied the Petition for Enforcement. This appeal followed. DISCUSSION The Board’s decision shall be sustained unless it is 1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; 2) obtained without procedures required by law, rule or regulation having been followed; or 3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). The interpretation of a settlement agreement is an issue of law. See Mays v. United States Postal Serv., 995 F.2d 1056, 1059 (Fed.Cir.1993) (“The settlement agreement is a contract, of course, and its interpretation is a matter of law.”); Greco v. Department of the Army, 852 F.2d 558, 560 (Fed.Cir.1988). We review the Board’s determinations of law for correctness, without deference to the Board’s decision. See Perry v. Department of the Army, 992 F.2d 1575, 1578 (Fed.Cir.1993) (“The construction of [the disputed] term in the agreement is a question of law that this court reviews de novo.”) In interpreting a written agreement, we first ascertain whether the written understanding is clearly stated and was clearly understood by the parties. If ambiguity is found, or if ambiguity has arisen during performance of the agreement, the judicial role is to implement the intent of the parties at the time the agreement was made. In so doing the words used by the parties to express their agreement are given their ordinary meaning, unless it is established that the parties mutually intended and agreed to some alternative meaning. Perry, 992 F.2d at 1579; Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 351 F.2d 972, 976 (1965). The paramount focus is the intention of the parties at the time of contracting;" }, { "docid": "13539135", "title": "", "text": "Dynamics Corp. v. United States, 218 Ct.Cl. 40, 49, 585 F.2d 457, 462 (1978) (quoting Edward R. Marden Corp. v. United States, 194 Ct.Cl. 799, 808, 442 F.2d 364, 369 (1971)), see AT & T Communications, Inc. v. WilTel, Inc., 1 F.3d at 1205. “A modification generally falls within the scope of the original procurement if potential bidders would have expected it to fall within the contract’s changes clause.” AT & T Communications, Inc. v. WilTel, Inc., 1 F.3d at 1205. The government cannot impose obligations on a contractor which far exceed those contemplated in their contract. Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1276 (Fed.Cir.) reh’g denied, 186 F.3d 1379 (1999). Cases that have found cardinal changes “have involved changes that altered the nature of the thing constructed.” Aragona Constr. Co. v. United States, 165 Ct.Cl. at 391; accord Saddler v. United States, 152 Ct.Cl. 557, 564, 287 F.2d 411, 415 (1961); see also Keco Indus., Inc. v. United States, 176 Ct.Cl. 983, 990-91, 364 F.2d 838, 847-48 (1966); Wunderlich Contracting Co. v. United States, 173 Ct.Cl. at 194, 351 F.2d at 966. “Each case must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.” Wunderlich Contracting Co. v. United States, 173 Ct.Cl. at 194, 351 F.2d at 966 (citing Saddler v. United States, 152 Ct.Cl. at 561, 287 F.2d at 413, 414). Moreover, the contractor must prove facts with specificity that support its allegations that a cardinal change occurred. See S.J. Groves & Sons Co. v. United States, 228 Ct.Cl. at 604, 661 F.2d at 174 (contractor failed to make “a clear showing of cardinal change”); Paragon Energy Corp. v. United States, 229 Ct.Cl. 524, 527, 1981 WL 22045 (1981) (contractor’s “conelusory assertion” that a cardinal change had occurred found insufficient to meet its burden). PCL has alleged “substantial changes” to PCL’s duties and the physical features of the project, along with descriptions concerning the difficulty and duration of its" }, { "docid": "7383842", "title": "", "text": "and exceeds the scope of the contract’s change clause.” PCL Const. Servs., Inc. v. United States, 47 Fed.Cl. 745, 804 (2000) (quoting General Dynamics Corp. v. United States, 585 F.2d 457, 462 (Ct.Cl.1978)). A cardinal change, however, does not arise if “[t]he contract itself explicitly provide[s] that discrepancies, omissions, conflicts and design changes would, or likely, would arise, and that the parties would address such issues during contract performance.” Id. at 805. It is well established that “[e]ach [cardinal change] ease must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole.” Wunderlich Contracting Co. v. United States, 351 F.2d 956, 966 (Ct.Cl.1965). For example, where the contractor is asked to build the same building that was initially contracted for, there is typically no cardinal change. Id. (“Plaintiff contracted to build a reinforced concrete hospital building on a certain site at Fort Howard, Maryland, and that is exactly what it built. The hospital, when it was completed, was in the same location, looked the same, had the same number of rooms and floors and the same facilities as the one shown on the original plans and specifications.”); see also PCL Const. Servs. v. United States, 47 Fed.Cl. 745, 805 (determining no cardinal change where there was no “dramatic change in the use and function of the building or the size of the building”). If, however, “drastic consequences follow from defective specifications ” a cardinal change may occur. See Edward R. Marden Corp. v. United States, 442 F.2d 364, 369-70 (Ct.Cl.1971) (emphasis added) (holding that the Navy’s change in specifications caused “major reconstruction” and “increased costs of almost double the contract price” thus resulting in a cardinal change). In this case, Metcalf acknowledged that the cardinal change claim is no different from the “different site condition” claim: METCALF’S COUNSEL: Your Honor, we didn’t raise a new claim. All we did was raise a new theory of recovery based upon the same factual circumstances that have existed" } ]

[ { "docid": "2325753", "title": "", "text": "to determine whether to dismiss a case for ‘substantial abuse.’ ” In re Meyn, 330 B.R. 286, 288-89 (Bankr.M.D.Fla.2005) Courts also agree, however, that the primary factor in the analysis is whether the debtor has the ability to repay even a portion of his liabilities pursuant to a hypothetical chapter 13 plan. In re Meyn, 330 B.R. 286, 288-90; In re Leung, 311 B.R. 626, 630-31 (Bankr.S.D.Fla.2004); In re Brown, 301 B.R. 607, 611 (Bankr.M.D.Fla. 2003)(“A debtor’s ability to pay as measured by what he could pay in a hypothetical Chapter 13 case is the primary but not conclusive factor in determining whether there is a substantial abuse of Chapter 7.”). A. Ability to pay A debtor’s ability to repay a portion of his debts is the primary factor in determining whether a case represents a “substantial abuse” of Chapter 7. 1. Income To determine whether a debtor is able to pay a significant portion of his debts, it is necessary to consider the amount of the “disposable income” that would be available for such repayment. In re Shields, 322 B.R. 894, 897 (Bankr.M.D.Fla.2005)(citing In re Pier, 310 B.R. 347, 353 (Bankr.N.D.Ohio 2004)). As set forth above, for example, a debtor’s “ability to pay” is generally measured by calculating the income that the debtor would be required to commit to a plan in a hypothetical Chapter 13 case. Pursuant to § 1325(b) of the Bankruptcy Code, a Chapter 13 debtor’s plan may be confirmed over an objection, if the debtor dedicates all of his “projected disposable income” to the plan. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as “income which is received by the debtor and which is not reasonably necessary to be expended—(A) for the maintenance or support of the debtor or a dependent of the debtor.” 11 U.S.C. § 1325(b)(2). A threshold issue in this case, therefore, is whether the Debtors receive income that exceeds what they need for their maintenance or support, so that they would be able to repay a portion of their debts through a hypothetical Chapter 13 plan. In their Amended Schedule I" } ]

[ { "docid": "17680397", "title": "", "text": "Cir.1989). In the Southern District of Florida, the primary factor to be considered in determining whether granting relief would be a substantial abuse within the meaning of 11 U.S.C. Section 707(b) is “the debtor’s ability to pay debts when due, as deter mined by the ability to fund a Chapter 13 plan” In re Matias, 203 B.R. 490 (Bankr.S.D.Fla.1996). The Southern District of Florida has also adopted a “totality of circumstances” standard, which finds that if the debtor has the ability to repay even a portion of his debts out of future income, he should not be in a Chapter 7. In re Dorwarth, 258 B.R. 293 (Bankr.S.D.Fla.2001). In the instant case, the Court rejects the Debtor’s arguments made at the Hearing that in order to dismiss a case pursuant to section 707(b), the Court must find that a debtor has engaged in dishonest conduct and that substantial abuse can only exist when a debtor’s lifestyle is luxurious. The finding of “bad faith” is not a prerequisite to section 707(b) dismissal. In re Green, 934 F.2d at 568. Courts often analyze the ability of a debtor to repay its creditors in the context of a hypothetical chapter 13 case, using chapter 13 concepts. E.g., Koch, 109 F.3d at 1288; Walton, 866 F.2d at 984-85. Such an analysis utilizes the concept of “disposable income,” 11 U.S.C. § 1325(b)(1)(B), which is defined in part as income reasonably necessary to be expended for the maintenance and support of the debtor, including certain charitable contributions. 11 U.S.C. § 1325(b)(2)(A). The Debtor’s payment or contributions into any type of account, fund, plan or other repository for the Debtor’s own present or future benefit for savings, pension, or similar purposes is on its face “not reasonably necessary to be expended ... for the maintenance or support of the debtor or a dependent of the debtor.” If such money were “necessary for the maintenance or support of the debtor,” obviously the Debtor could not put it in a savings or pension account. In addition to the clear language of the statute, most courts have perceived an inherent" }, { "docid": "3437818", "title": "", "text": "debtor’s “need,” the first one is of primary importance: whether the debtor has the ability to “repay his debts out of future earnings.” ... In assessing a debtor’s ability to repay his debts, a court’s task is to hypothesize whether the debtor, if he or she had filed for relief under Chapter 13 of the Bankruptcy Code, as opposed to Chapter 7, would be able to repay their debts with relative ease. In re Pier, 310 B.R. at 353. Finally, as Judge Killian stated in evaluating a Motion to Dismiss brought by the United States Trustee under § 707(b): There are two basic approaches used by courts to determine what constitutes “substantial abuse.” The first approach looks to the debtor’s ability to repay his debts out of future income, as determined by his ability to fund a Chapter 13 plan.... The second adopts a “totality of the circumstances” test which evaluates a list of numerous factors which are relevant to the debtor’s financial planning and could be evidence of substantial abuse.... Presently there are no controlling cases in the Eleventh Circuit. Regardless of which approach is appropriate, the common thread among the circuits is that if the debtor has the ability to repay even a portion of his debts out of future income, he should not be in Chapter 7. In re Cox, 249 B.R. 29, 31 (Bankr.N.D.Fla.2000)(Emphasis supplied). B. “Disposable income” A debtor’s ability to repay a significant portion of his debts, therefore, is the primary factor in determining whether a case represents a “substantial abuse” under § 707(b) of the Bankruptcy Code. To determine whether a debtor is able to repay a substantial portion of his debts, however, it is necessary to consider the amount of the debtor’s “disposable income” that is available for such repayment. In re Pier, 310 B.R. at 353. For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that" }, { "docid": "18331123", "title": "", "text": "7 is determined by an examination of the following non-exclusive factors: (a) whether the Debtor has the ability to repay his debts out of future earnings; (b) whether the Debtor enjoys a stable source of future income; (c) whether the Debtor is eligible for chapter 13 relief; (d) whether there are state remedies with the potential to ease the Debtor’s financial predicament; (e) whether relief may be obtained through private negotiations with creditors; and (f) whether expenses can be reduced significantly without depriving the Debtor of adequate food, clothing, shelter and other necessities. In re Krohn, 886 F.2d at 126-27. One consideration relevant to the first factor, whether the Debtor has the ability to repay debts, is whether the Debtors have sufficient disposable income to fund a hypothetical chapter 13 plan. Behlke, 358 F.3d at 435. 2. 401(k) Contributions As Reasonably • Necessary Expenses Disposable income is defined under the Bankruptcy Code as income received by the debtor which is not reasonably necessary for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2)(A)®. Within the Sixth Circuit, courts have universally determined that voluntary retirement contributions are not reasonably necessary for the maintenance and support of a debtor and must be included in a disposable income analysis under § 707(b). In re Glenn, 345 B.R. 831, 836 (Bankr.N.D.Ohio 2006) (as a matter of law the debtor’s voluntary 401(k) contribution was not a permissible deduction when determining the debtor’s ability to pay in a § 707(b) action); In re Keating, 298 B.R. 104, 110 (Bankr.E.D.Mich.2003) (contributions a debtor makes to his 401(k) plan do not constitute funds necessary for support and must be included in disposable income for purposes of deciding the issue of substantial abuse); In re Austin, 299 B.R. 482, 486-87 (Bankr.E.D.Tenn.2003) (in the Sixth Circuit, retirement plan contributions constitute disposable income for purposes of a substantial abuse analysis); See also Hebbring v. U.S. Trustee, 468 F.3d 902, 906 (9th Cir.2006), in which the Court characterized the Sixth Circuit as having adopted a per se rule that voluntary contributions to retirement plans" }, { "docid": "18522521", "title": "", "text": "if still applicable, Mr. Cortez’ unemployment.”). Accord In re Richie, 353 B.R. 569 (it is a debtor’s ability or inability to pay at the time of the hearing on the motion to dismiss, not on the petition date, that is relevant in determining whether dismissal is appropriate under the totality of the circumstances.) Having reviewed the Henebury opinion, the cases cited by Chief Judge Hyman, as well as cases with contrary findings, I am persuaded by Chief Judge Hyman’s analysis and holding. I agree that it is appropriate to consider post-petition events in viewing the totality of the circumstances of the debtor’s financial situation. The post-petition circumstances that a court can and may consider in determining abuse under 11 U.S.C. § 707(b)(3)(B) must be considered in a set time frame, one that offers a greater degree of certainty than the In re Cortez date of a hypothetical discharge that may never come. Therefore, I hold that the cut-off date for determination of relevancy is the date of the hearing on the motion to dismiss. THE DEBTORS’ FINANCIAL SITUATION I must now determine, based on the Debtors’ financial situation at the time of the hearing on the motion to dismiss, whether the totality of circumstances in this case “demonstrates abuse.” In determining whether a debtor’s financial situation demonstrates abuse, or, pre-BAPCPA, substantial abuse, virtually all courts have applied a test that analyzes “whether the debtor has sufficient projected disposable income to fund a hypothetical [cjhapter 13 case.” In re Henebury, 361 B.R. at 611. See In re Leung, 311 B.R. 626 (Bankr.S.D.Fla.2004); In re Brown, 301 B.R. 607. In determining the feasibility of a chapter 13 bankruptcy plan, a court is bound to review a debtor’s “projected disposable income.” 11 U.S.C. § 1325(b)(1)(B). Whatever method is used to determine a debt- or’s “projected disposable income,” all courts analyzing income review the facts at the time of plan confirmation, not facts that are unknown or highly speculative. Indeed, 11 U.S.C. § 1329 governing modification of chapter 13 plans is consistent with this approach. A chapter 13 plan may be modified based on" }, { "docid": "19308989", "title": "", "text": "adopted by the bankruptcy court in In re Keffernan, 242 B.R. 812, 816 (Bankr.D.Conn.1999) which noted the Second Circuit’s recognition of the analysis as a mainstream approach. In evaluating a debtor’s ability to repay his or her indebtedness, a court considers “the ‘disposable income’ that would be available to pay creditors under a hypothetical Chapter 13 plan” Heffernan, 242 B.R. at 816, citing, In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997). See also Larhanna, 153 F.3d at 4 n. 7, 5 (finding that a debtor’s ability to fund a Chapter 13 plan out of future disposable income is the primary, but not conclusive, factor in determining whether granting relief is a substantial abuse). The definition of disposable income under a Chapter 13 consumer debtor plan is income received by the debtor not reasonably necessary (1) to be expended for the maintenance and support of the debtor, or a dependent of the debt- or, or (2) to be expended for certain allowed charitable contributions. 11 U.S.C. § 1325(b)(2). While income that is reasonably necessary to support dependents is excluded from disposable income, amounts voluntarily paid to non-dependent family members are included in the disposable income calculation. In re Richmond, 144 B.R. 539, 542 (Bankr.W.D.Okla.1992). This is because although one may feel morally compelled to provide support for non-dependent family members, it is not a legal obligation, while there is a legal obligation to creditors. In re Mastromarino, 197 B.R. 171, 178 (Bankr.Me.1996). A debtor cannot “unilaterally ... subordinate his creditors” to those he chooses to subsidize. Id. Even if considered “commendable” to voluntarily support such non- dependent family members, it cannot be at the expense of creditors. United States Trustee v. Duncan (In re Duncan), 201 B.R. 889, 897 (Bankr.W.D.Pa.1996). Finally, relevant to assessing the totality of circumstances, the court considers factual arguments justifying expenses. Kornfield, 164 F.3d at 782. After a court has analyzed the disposable income and ability to pay, it then considers additional factors, some of which are mitigating factors that militate against dismissal, others are aggravating factors emphasizing a debtor’s bad faith, dishonesty or lack of" }, { "docid": "2325754", "title": "", "text": "repayment. In re Shields, 322 B.R. 894, 897 (Bankr.M.D.Fla.2005)(citing In re Pier, 310 B.R. 347, 353 (Bankr.N.D.Ohio 2004)). As set forth above, for example, a debtor’s “ability to pay” is generally measured by calculating the income that the debtor would be required to commit to a plan in a hypothetical Chapter 13 case. Pursuant to § 1325(b) of the Bankruptcy Code, a Chapter 13 debtor’s plan may be confirmed over an objection, if the debtor dedicates all of his “projected disposable income” to the plan. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as “income which is received by the debtor and which is not reasonably necessary to be expended—(A) for the maintenance or support of the debtor or a dependent of the debtor.” 11 U.S.C. § 1325(b)(2). A threshold issue in this case, therefore, is whether the Debtors receive income that exceeds what they need for their maintenance or support, so that they would be able to repay a portion of their debts through a hypothetical Chapter 13 plan. In their Amended Schedule I filed on May 20, 2005, the Debtors stated that their combined net income is $7,418.00 per month. (Doc. 27; UST’s Exhibit 1). To calculate their net income, the Debtors subtracted certain amounts from their gross income as “payroll deductions.” The payroll deductions include the sum of $948.00 for repayment of the 401(k) loan that they obtained in 2002, and the sum of $200.00 for 401(k) contributions. The Debtors contend that the loan repayment is a necessary deduction from William Jones’ gross income because such repayment is required by his employer, and also because nonpayment of the loan would result in an additional tax liability. Although the Court is sensitive to the consequences of a default in payment, prevailing authority under § 707(b) holds that the funds should be regarded as income that is available in a hypothetical Chapter 13 case. The payroll deductions related to the 401(k) plan are not appropriate deductions for purposes of computing the Debtors’ disposable income under § 707(b). Contributions a debtor makes to his 401(k) plan do not constitute funds" }, { "docid": "7110084", "title": "", "text": "of $5084 equal approximately 150% of the IRS standard expenses. Debtors’ housing and utilities expenses equal $1717 compared to the standard for Dubuque County of $834. Debtors’ transportation expenses total $1243 compared to the standard for the U.S. Midwest Region of $1006. The remainder of Debtors’ expenses total $2124 compared to the IRS standards of $1399 for food, housekeeping supplies, apparel, personal care products, services and miscellaneous for a family of three with a gross monthly income of $5830 and over. Debtors’ gross monthly income is in excess of $7000. CONCLUSIONS OF LAW Section 707(b) of the Bankruptcy Code provides the court may dismiss a case filed by a Chapter 7 debtor whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of Chapter 7. 11 U.S.C. § 707(b). “Substantial abuse” is not a defined term. In the Eighth Circuit, “[a] Chapter 7 debtor’s ability to fund a Chapter 13 plan ‘is the primary factor to be considered in determining whether granting relief would be substantial abuse.’ ” In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997); In re Walton, 866 F.2d 981, 983 (8th Cir.1989). For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that all of the debtors’ projected disposable income to be received during a three-year plan will be applied to plan payments. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as that which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2)(A). Evaluating Debtors’ ability to fund a Chapter 13 plan necessitates a review of Debtor’s disposable income. This court has he'ld that regular tax refunds should be taken into account in this analysis. In re Nelson, No. 9703710S, slip op. at 5-6 (Bankr.N.D.Iowa March 16, 1998), aff'd, 223 B.R. 349 (8th Cir." }, { "docid": "1246858", "title": "", "text": "the UST’s assertion that the Debtors have the ability to repay their debts, at issue in this matter is the applicability of § 707(b)(3). In particular, subparagraph (B) of § 707(b)(3) which provides: (3) In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter in a case in which the presumption in subparagraph (A)(i) of such paragraph does not arise or is rebutted, the court shall consider— (B) the totality of the circumstances (including whether the debtor seeks to reject a personal services contract and the financial need for such rejection as sought by the debtor) of the debtor’s financial situation demonstrates abuse. By prescribing that abuse may be determined by reference to the ‘totality of the circumstances,’ this provision allows a court to conduct a subjective, case-by-case, analysis of a debtor’s financial situation. In re Wilson, 356 B.R. 114, 121 (Bankr. D.Del.2006). Whether, as argued by the UST, a debtor has the ability to repay their debts is a primary, although not the only consideration potentially bearing on whether the totality of the debtor’s financial circumstances will be found to demonstrate abuse under § 707(b)(3). A frequently utilized measure, when determining whether a debtor has the ability to repay their debts, is to ascertain whether, under a hypothetical Chapter 13 repayment plan, the debtor could repay a meaningful percentage of his or her unsecured debts. In re Behlke, 358 F.3d at 434-35; In re Glenn, 345 B.R. 831, 836 (Bankr.N.D.Ohio 2006). In turn, whether a debtor would be able to make, under a Chapter 13 plan of reorganization, a meaningful remuneration to his or her unsecured creditors is primarily contingent upon the amount of “disposable income” the debtor has available to pay into the plan. The term “disposable income” is defined, generally, as that income received by a debtor which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2); In re Pier, 310 B.R. 347, 353 (Bankr.N.D.Ohio 2004). Within this framework, the Debtors" }, { "docid": "3437819", "title": "", "text": "controlling cases in the Eleventh Circuit. Regardless of which approach is appropriate, the common thread among the circuits is that if the debtor has the ability to repay even a portion of his debts out of future income, he should not be in Chapter 7. In re Cox, 249 B.R. 29, 31 (Bankr.N.D.Fla.2000)(Emphasis supplied). B. “Disposable income” A debtor’s ability to repay a significant portion of his debts, therefore, is the primary factor in determining whether a case represents a “substantial abuse” under § 707(b) of the Bankruptcy Code. To determine whether a debtor is able to repay a substantial portion of his debts, however, it is necessary to consider the amount of the debtor’s “disposable income” that is available for such repayment. In re Pier, 310 B.R. at 353. For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that all of the debtors’ projected disposable income to be received during a three-year plan will be applied to plan payments. In re Butler, 277 B.R. 917, 920 (Bankr.N.D.Iowa 2002)(Emphasis supplied). In other words, in conducting the analysis under § 707(b), courts should determine whether a debtor is in “need” of chapter 7 protection by considering the debtor’s ability to repay his debts out of future income. “In its assessment of ‘need,’ a court’s task is to hypothesize the debtor’s filing a Chapter 13 and then to apply the ‘projected disposable income’ test of § 1825(b)(2).” In re Stallman, 198 B.R. 491, 495 (Bankr.W.D.Mich.1996)(Emphasis supplied). The term “disposable income” is defined in the Bankruptcy Code as “income which is received by the debtor and which is not reasonably necessary to be expended — (A) for the maintenance or support of the debtor or a dependent of the debtor.... ” 11 U.S.C. § 1325(b)(2). C. “Exempt” income In this case, it is undisputed that the Debtors’ income consists of social security benefits, disability benefits, and retirement benefits." }, { "docid": "2325760", "title": "", "text": "forth above, after eliminating the payroll deduction related to the 401 (k) plan, the Debtors have a minimum of $1,200.00 per month in disposable income that would be available to fund a plan in a Chapter 13 case. Such a plan would provide $43,200.00 to creditors over a period of 36 months, or $72,000.00 to creditors over a period of 60 months. Further, if the Debtors’ budget were adjusted to reduce or eliminate certain expenses associated with their home, a Chapter 13 plan could yield a significantly greater distribution to creditors. According to the calculations of William Orr, a senior bankruptcy analyst with the UST’s office, the Debtors received disposable income in the amount of $1,236.00 per month, after certain adjustments were made to their budget. (Transcript, Vol.I, p. 115). Although the analyst’s method of calculation differs from the Court’s, it is noteworthy that his final computation of disposable income ($1,236.00) is nearly identical to the figure used by the Court ($1,200.00) as the minimum amount that the Debtors should have available for payment to creditors. The Debtors have the ability to repay a substantial portion of their debts through a hypothetical Chapter 13 plan. B. Other factors 1. Events precipitating bankruptcy In evaluating the totality of the circumstances under § 707(b), courts generally consider whether the debtor’s case was filed as the result of an unforeseen, catastrophic event. In re Meyn, 330 B.R. at 289-90; In re Shields, 322 B.R. at 897. In this case, no sudden catastrophic event preceded the filing of the Debtors’ bankruptcy petition. The Debtors have been steadily employed at well-paying jobs, and are in reasonably good health. Although the Debtors’ daughter has been diagnosed with a genetic disorder, their financial difficulties were not caused by any extraordinary medical expenses. On the contrary, it appears that the Debtors’ Chapter 7 petition was precipitated by their decision to purchase and retain a home in an upscale, gated community, even after they should have known that the home was not affordable for them. First, the Debtors knew when they contracted to buy the home that the deposit" }, { "docid": "3362236", "title": "", "text": "adjustments, budgeting and planning, Debtors could fund a Chapter 13 plan. CONCLUSIONS OF LAW Section 707(b) of the Bankruptcy Code provides the Court may dismiss a ease filed by a Chapter 7 debtor whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of Chapter 7. In re Taylor; 212 F.3d 395, 396 (8th Cir.2000); 11 U.S.C. § 707(b). “Substantial abuse” is not a defined term. In the Eighth Circuit, “[a] Chapter 7 debtor’s ability to fund a Chapter 13 plan ‘is the primary factor to be considered in determining whether granting relief would be substantial abuse.’ ” In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997). For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that all of the debtors’ projected disposable income to be received during a three-year plan will be applied to plan payments. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as that which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2)(A). Evaluating Debtors’ ability to fund a Chapter 13 plan necessitates a review of Debtor’s disposable income. See generally, In re Butler, 277 B.R. 917, 920-21 (Bankr.N.D.Iowa 2002). This court has held that regular tax refunds should be taken into account 'in this analysis. Id. at 920. The Bankruptcy Code requires a meaningful and realistic budget, accompanied by the devotion of most of the debtor’s surplus income to repay creditors. In re Bottelberghe, 253 B.R. 256, 263 (Bankr.D.Minn.2000). Courts apply § 1325(b) to allow debtors to maintain a reasonable lifestyle while simultaneously insuring they make a serious effort to pay creditors by eliminating unnecessary and unreasonable expenses. In re Zaleski, 216 B.R. 425, 431 (Bankr.D.N.D.1997). Some expenditures are clearly essential, or non-discretionary, such as reasonable amounts budgeted for food, clothing and" }, { "docid": "1246859", "title": "", "text": "consideration potentially bearing on whether the totality of the debtor’s financial circumstances will be found to demonstrate abuse under § 707(b)(3). A frequently utilized measure, when determining whether a debtor has the ability to repay their debts, is to ascertain whether, under a hypothetical Chapter 13 repayment plan, the debtor could repay a meaningful percentage of his or her unsecured debts. In re Behlke, 358 F.3d at 434-35; In re Glenn, 345 B.R. 831, 836 (Bankr.N.D.Ohio 2006). In turn, whether a debtor would be able to make, under a Chapter 13 plan of reorganization, a meaningful remuneration to his or her unsecured creditors is primarily contingent upon the amount of “disposable income” the debtor has available to pay into the plan. The term “disposable income” is defined, generally, as that income received by a debtor which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2); In re Pier, 310 B.R. 347, 353 (Bankr.N.D.Ohio 2004). Within this framework, the Debtors maintain that the UST’s assessment of their ability to pay is facially incorrect, pointing to those budgetary figures provided in their amended schedules. These figures show that they have a shortfall in their household budget approaching as much as $500.00 per month. According to the Debtors, this deficit in their monthly budget stems primarily from “the loss of dividend income from investment in the housing market, coupled with the debtor’s [sic] own home construction difficulties .... ” (Doc. 18, at pg. 9). As a purely evidentiary matter, an assessment of a debtor’s ‘disposable income’ is not entirely dependent on those financial figures provided by the debtor. Rather, “in its role as the trier-of-fact, the Court is under a duty to scrutinize a debt- or’s expenses, and make downward adjustments where necessary, so as to ensure that the debtor’s expenses are reasonable. Similarly, when determining a debtor’s ‘disposable income,’ a court may impute income to the debtor when it would be equitable to do so — e.g., when the debtor is voluntarily underemployed.” In re Gonzalez," }, { "docid": "17510871", "title": "", "text": "LAW Section 707(b) of the Bankruptcy Code provides the court may dismiss a case filed by a Chapter 7 debtor whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the provisions of Chapter 7. 11 U.S.C. § 707(b). “Substantial abuse” is not a defined term. In the Eighth Circuit, “[a] Chapter 7 debtor’s ability to fund a Chapter 13 plan ‘is the primary factor to be considered in determining whether granting relief would be substantial abuse.’ ” In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997); In re Walton, 866 F.2d 981, 983 (8th Cir.1989). For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that all of the debtors’ projected disposable income to be received during a three-year plan will be applied to plan payments. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as that which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2)(A). Evaluating Debtors’ ability to fund a Chapter 13 plan necessitates a review of Debtor’s disposable income. This court has held that regular tax refunds should be taken into account in this analysis. In re Nelson, No. 97-03710S, slip op. at 5-6 (Bankr.N.D.Iowa March 16, 1998), aff'd, 223 B.R. 349 (8th Cir. BAP 1998). An analysis of projected disposable income necessarily considers the amount of the debtor’s current income tax withholdings and whether any tax refund will be generated. In re O'Brien, 181 B.R. 71, 76 (Bankr.D.Ariz.1995). Whether income is “reasonably necessary” for the debtors’ maintenance and support is open to interpretation. See In re Gleason, 267 B.R. 630, 633 (Bankr.N.D.Iowa 2001) (considering requirements for Chapter 13 plan confirmation). In Chapter 13, the Code requires a meaningful and realistic budget, accompanied by the devotion of most of the debtor’s surplus income to repay creditors." }, { "docid": "3437825", "title": "", "text": "of the debtor’s disposable income, and that the chapter 7 case was properly dismissed as a substantial abuse of chapter 7 pursuant to § 707(b) of the Bankruptcy Code. Id. Finally, in In re Zuehlke, 298 B.R. 610 (Bankr.N.D.Iowa 2003), the United States Trustee asserted that the debtors’ chapter 7 case should be dismissed under § 707(b) because the debtors had the ability to fund a chapter 13 plan with their social security and disability benefits. For § 707(b) purposes, courts measure debtors’ ability to pay creditors by evaluating their financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1290. In order to overcome an objection to confirmation, a Chapter 13 plan must either pay claims in full or provide that all of a debtor’s projected disposable income over three years will be applied to plan payments. 11 U.S.C. § 1325(b)(l)(B)(1998). Chapter 13 defines “disposable income” as “income which is received by the debtor and which is not reasonably necessary to be expended ... for the maintenance or support of the debtor or a dependent of the debtor.” 11 U.S.C. § 1325(b)(2). Disposable income includes disability payments and insurance policy proceeds. Koch, 109 F.3d at 1288-89. In re Zuehlke, 298 B.R. at 614(Emphasis supplied). Based on the amount of the debtors’ social security and disability income, the Court in Zuehlke concluded that the debtors were capable of funding a chapter 13 plan, and that the case should be dismissed under § 707(b) of the Bankruptcy Code. Id. at 616. Conclusion In this case, the Debtors acknowledge that they receive social security benefits, veteran’s disability payments, and retirement benefits in the aggregate amount of $5,000.00 per month. In view of the authorities discussed above, the Court finds that such benefits are subject to the “disposable income” analysis set forth in § 1325(b) of the Bankruptcy Code, in the context of determining whether this case represents a substantial abuse of chapter 7 pursuant to § 707(b) of the Bankruptcy Code. Accordingly: IT IS ORDERED that: 1.The Motion for Summary Judgment filed by the United States Trustee is granted as" }, { "docid": "1479502", "title": "", "text": "the idea of a per se rule excluding charitable contributions as allowable expenses in § 523(a)(8) proceedings). Another court, while not specifically addressing the effect of the RLCDPA, held that a charitable contribution of $60 per month was a reasonable and necessary expense of the debtors and was properly counted in their expenses to determine undue hardship. Lebovits v. Chase Manhattan Bank (In re Lebovits), 223 B.R. 265 (Bankr.E.D.N.Y.1998). This court agrees with the reasoning expressed in McLeroy that the absence of an amendment to 11 U.S.C. § 523(a)(8) does not result in a per se exclusion of charitable contributions in determining undue hardship. What then, is the appropriate standard to employ? In a number of instances and for various purposes bankruptcy courts are required to determine a debtor’s disposable income. For example, if the trustee or a creditor objects to a proposed chapter 13 plan, the debtor must pay all of his disposable income under the plan for at least three years in order for the plan to be con firmed. 11 U.S.C. § 1325(b)(1)(B). Disposable income is defined at 11 U.S.C. § 1325(b)(2) as “income which is not reasonably necessary to be expended ... for the maintenance or support of the debtor or a dependent of the debtor.” Charitable giving within the limits of 11 U.S.C. § 548(d) is considered “reasonably necessary.” Id. Similarly, a chapter 7 case may be dismissed for substantial abuse under 11 U.S.C. § 707. Courts have determined that a debtor’s ability to repay debts is a primary factor in determining whether chapter 7 relief would constitute substantial abuse. Price v. United States Trustee (In re Price), 353 F.3d 1135, 1140 (9th Cir.2004); Behlke v. Eisen (In re Behlke), 358 F.3d 429, 434 (6th Cir.2004); Stewart v. United States Trustee (In re Stewart), 175 F.3d 796, 808 (10th Cir.1999); In re Leung, 311 B.R. 626, 630 (Bankr.S.D.Fla.2004). Therefore, the courts must necessarily consider the debtor’s disposable income. Charitable donations within the limits of § 548(a)(2) are allowable expenses under a § 707(b) analysis. Because a determination of disposable income is a component of the" }, { "docid": "3312437", "title": "", "text": "month toward the support of her adult son, $663.00 per month toward her unspecified insurance, and $800.00 towards a step grandson’s daycare. In fact, her individual expenses, which total $4,522.00 exceed her monthly net income by $859.00, leaving her with nothing to contribute toward the parties’ joint expenses, including rent, utilities, food, clothing, transportation or medical and dental expenses. Consequently, I find that the Debtor is paying all of the parties’ day to day living expenses, with his wife contributing nothing from her earnings toward their joint expenses. I must, therefore, determine whether, given these facts, the Debtor has the ability to fund a Chapter 13 plan. As noted, the test for determining whether a debtor has the ability to fund a Chapter 13 plan is identical to that used to determine whether the debtor is committing all of his disposable income to a proposed Chapter 13 plan. Disposable income is defined as “income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependent of the debtor ....” 11 U.S.C. § 1325(b)(2)(A). The Ninth Circuit has not addressed the issue of whether the income of a non debt- or spouse should be included with that of the debtor for purposes of this test. However, most courts which have addressed the issue have, at a minimum, required the consideration of the non debtor spouse’s income, see, e.g., In re Engskow, 247 B.R. 314 (Bankr.M.D.Fla.2000); In re Cardillo, 170 B.R. 490 (Bankr.D.N.H.1994); In re Bottorff, 232 B.R. 171 (Bankr.W.D.Mo. 1999) while others have required that the income of the non debtor spouse be included with that of the debtor. In re Staub, 256 B.R. 567 (Bankr.M.D.Pa.2000), In re Carter, 205 B.R. 733 (Bankr.E.D.Pa.1996); In re Saunders, 60 B.R. 187 (Bankr. N.D.Ohio 1986). “Congress expressed no intention that 707(b) should effect a non-debtor or that any non-debtor should be required to tighten his or her belt in order to assist the debtor in paying debts.” In re Attanasio, 218 B.R. 180, 235 (Bankr.N.D.Ala. 1998). Nevertheless, “[i]n" }, { "docid": "7110085", "title": "", "text": "would be substantial abuse.’ ” In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997); In re Walton, 866 F.2d 981, 983 (8th Cir.1989). For § 707(b) purposes, ability to pay creditors is measured by evaluating Debtors’ financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1288. Confirmation of a Chapter 13 plan requires, if an objection to confirmation is advanced, that the plan provide that all of the debtors’ projected disposable income to be received during a three-year plan will be applied to plan payments. 11 U.S.C. § 1325(b)(1)(B). “Disposable income” is defined as that which is not reasonably necessary to be expended for the maintenance or support of the debtor or a dependent of the debtor. 11 U.S.C. § 1325(b)(2)(A). Evaluating Debtors’ ability to fund a Chapter 13 plan necessitates a review of Debtor’s disposable income. This court has he'ld that regular tax refunds should be taken into account in this analysis. In re Nelson, No. 9703710S, slip op. at 5-6 (Bankr.N.D.Iowa March 16, 1998), aff'd, 223 B.R. 349 (8th Cir. BAP 1998). Aji analysis of projected disposable income necessarily considers the amount of the debtor’s current income tax withholdings and whether any tax refund will be generated. In re O’Brien, 181 B.R. 71, 76 (Bankr.D.Ariz.1995). Whether income is “reasonably necessary” for the debtors’ maintenance and support is open to interpretation. See In re Gleason, 267 B.R. 630 (Bankr. N.D.Iowa 2001) (considering requirements for Chapter 13 plan confirmation). In Chapter 13, the Code requires a meaningful and realistic budget, accompanied by the devotion of most of the debtor’s surplus income to repay creditors. In re Bottelberghe, 253 B.R. 256, 263 (Bankr. D.Minn.2000). Chapter 13 debtors are not required to adopt a totally spartan existence; neither are they permitted to continue an extravagant lifestyle at the expense of creditors. In re Webb, 262 B.R. 685, 692 (Bankr.E.D.Tex.2001); Bottelberghe, 253 B.R. at 263. Courts apply § 1325(b) to allow debtors to maintain a reasonable lifestyle while simultaneously insuring they make a serious effort to pay creditors by eliminating unnecessary and unreasonable expenses. In re Zaleski, 216 B.R. 425," }, { "docid": "19308988", "title": "", "text": "petition before it would not qualify under any totality of circumstances test. Kornfield, 164 F.3d at 784. In Kornfield, the Second Circuit also accepted the analysis applied by the bankruptcy court that had considered the petition filed by the Kornfields. The Second Circuit found that “the bankruptcy court ... applied a totality of circumstances test that was well within the mainstream of analysis used by other circuits.” Kornfield, 164 F.3d at 783. The bankruptcy court in that case first detailed the three approaches that it recognized courts use in considering § 707(b) motions, and then attempted to apply a test that blended those three approaches. In re Carlton, 211 B.R. 468, 477-78 (Bankr.W.D.N.Y.1997). The bankruptcy court considered the debtors’ ability to repay their debts as the primary factor, it then considered a totality of circumstances test to determine whether there were either any mitigating factors which would warrant relieving the debtors of the obligation to pay or any aggravating factors showing the debtors’ bad faith or lack of honesty. Id. This same approach was later adopted by the bankruptcy court in In re Keffernan, 242 B.R. 812, 816 (Bankr.D.Conn.1999) which noted the Second Circuit’s recognition of the analysis as a mainstream approach. In evaluating a debtor’s ability to repay his or her indebtedness, a court considers “the ‘disposable income’ that would be available to pay creditors under a hypothetical Chapter 13 plan” Heffernan, 242 B.R. at 816, citing, In re Koch, 109 F.3d 1285, 1288 (8th Cir.1997). See also Larhanna, 153 F.3d at 4 n. 7, 5 (finding that a debtor’s ability to fund a Chapter 13 plan out of future disposable income is the primary, but not conclusive, factor in determining whether granting relief is a substantial abuse). The definition of disposable income under a Chapter 13 consumer debtor plan is income received by the debtor not reasonably necessary (1) to be expended for the maintenance and support of the debtor, or a dependent of the debt- or, or (2) to be expended for certain allowed charitable contributions. 11 U.S.C. § 1325(b)(2). While income that is reasonably necessary to" }, { "docid": "18522522", "title": "", "text": "DEBTORS’ FINANCIAL SITUATION I must now determine, based on the Debtors’ financial situation at the time of the hearing on the motion to dismiss, whether the totality of circumstances in this case “demonstrates abuse.” In determining whether a debtor’s financial situation demonstrates abuse, or, pre-BAPCPA, substantial abuse, virtually all courts have applied a test that analyzes “whether the debtor has sufficient projected disposable income to fund a hypothetical [cjhapter 13 case.” In re Henebury, 361 B.R. at 611. See In re Leung, 311 B.R. 626 (Bankr.S.D.Fla.2004); In re Brown, 301 B.R. 607. In determining the feasibility of a chapter 13 bankruptcy plan, a court is bound to review a debtor’s “projected disposable income.” 11 U.S.C. § 1325(b)(1)(B). Whatever method is used to determine a debt- or’s “projected disposable income,” all courts analyzing income review the facts at the time of plan confirmation, not facts that are unknown or highly speculative. Indeed, 11 U.S.C. § 1329 governing modification of chapter 13 plans is consistent with this approach. A chapter 13 plan may be modified based on changed circumstances, which, pre-BAPCPA, the majority of courts required be “substantial and unanticipated.” See, e.g., In re Woodhouse, 119 B.R. 819 (Bankr.M.D.Ala.1990); In re Euler, 251 B.R. 740 (Bankr.M.D.Fla.2000). But see Matter of Witkowski, 16 F.3d 739 (7th Cir.1994); Itule v. Heath (In re Heath), 182 B.R. 557 (9th Cir. BAP 1995) (holding that since 11 U.S.C. § 1329 does not include a requirement of “substantial or unanticipated” changes, courts should not impose such a condition). In determining the Debtors’ “projected disposable income,” and therefore their ability to pay all or a portion of their debts, I must look at the Debtors’ projected income over the next 60 months. There are two primary methods used by courts to determine a debtor’s “projected disposable income” under the totality of the circumstances analysis, one based on the debtor’s CMI, see, e.g., In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006), the other based on the debtor’s net income taken from actual anticipated income and expenses during the chapter 13, see, e.g. In re Arsenault, 370 B.R. 845 (Bankr.M.D.Fla.2007). Using" }, { "docid": "3437824", "title": "", "text": "Cir.2000). The income at issue in Taylor consisted of payments from the debtor’s ERISA-qualified pension fund. The fact that a pension is exempt from the reach of creditors does not preclude a bankruptcy court from finding that the pension is also disposable income for purposes of Chapter 13. The question of whether income from a pension is exempt from creditors is a wholly independent inquiry from the question of whether the pension income is reasonably necessary to support the debt- or.... The latter question is the pertinent inquiry for purposes of Chapter 13. See Koch, 109 F.3d at 1289. In regard to the former question, we note that nothing in the language of Chapter 13 prevents the funding of a Chapter 13 plan with exempt income.... Hence the question of whether a pension plan is exempt or otherwise restricted by a federal anti-alienation provision is irrelevant in a Chapter 13 context. In re Taylor, 212 F.3d at 397. The Court concluded, therefore, that payments from the debtor’s pension plan were properly included in the calculation of the debtor’s disposable income, and that the chapter 7 case was properly dismissed as a substantial abuse of chapter 7 pursuant to § 707(b) of the Bankruptcy Code. Id. Finally, in In re Zuehlke, 298 B.R. 610 (Bankr.N.D.Iowa 2003), the United States Trustee asserted that the debtors’ chapter 7 case should be dismissed under § 707(b) because the debtors had the ability to fund a chapter 13 plan with their social security and disability benefits. For § 707(b) purposes, courts measure debtors’ ability to pay creditors by evaluating their financial condition in a hypothetical Chapter 13 proceeding. Koch, 109 F.3d at 1290. In order to overcome an objection to confirmation, a Chapter 13 plan must either pay claims in full or provide that all of a debtor’s projected disposable income over three years will be applied to plan payments. 11 U.S.C. § 1325(b)(l)(B)(1998). Chapter 13 defines “disposable income” as “income which is received by the debtor and which is not reasonably necessary to be expended ... for the maintenance or support of the debtor" } ]

[ { "docid": "22673819", "title": "", "text": "58 F.3d 1425, 1428 (9th Cir.1995) (Ghaly). “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995) (Prasad). The objective component requires a showing by credible, direct, and specific evidence in the record, of facts supporting a reasonable fear of persecution on the relevant ground. Id. Fisher has the burden of making this showing. Ghaly, 58 F.3d at 1428; 8 C.F.R. § 208.13(a) (1995). Section 243(h) of the Act, 8 U.S.C. § 1253(h), requires the Attorney General, subject to certain exceptions not relevant here, to withhold deportation “if the Attorney General determines that such alien’s life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” An alien is statutorily eligible for such relief if he or she demonstrates a “clear probability of persecution.” Ghaly, 58 F.3d at 1429 (internal quotation omitted). This standard is more stringent than the “well-founded fear” standard applicable to requests for asylum, and it can be met only by showing that it is more likely than not that the alien will be persecuted if deported. Id. “Therefore, failure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding of deportation as well.” Id. Thus, we first focus on whether Fisher proved she was eligible for asylum. We review the Board’s determination that Fisher failed to demonstrate a “well-founded fear of persecution,” including its factual findings, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (Elias-Zacarias); 8 U.S.C. § 1105a(a)(4). The burden on Fisher is a heavy one. To obtain reversal, Fisher must establish that the evidence not only supports the conclusion that she suffered persecution or has a well-founded fear of persecution, but compels it. Ghaly, 58 F.3d at 1431. Fisher must demonstrate that “the evidence [she] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at" } ]

[ { "docid": "22884087", "title": "", "text": "of race, religion, nationality, membership in a particular social group, or political opinion.” If an applicant proves that he or she is the victim of past persecution, then a presumption arises of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13. Where an applicant is unable to establish past persecution, the applicant may nevertheless be entitled to relief if he or she proves the existence of a well-founded fear of future persecution — i.e., a fear that is both subjectively genuine and objectively reasonable. Knezevic v. Ashcroft, 367 F.3d 1206, 1213 (9th Cir.2004). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Id. The BIA’s factual determination that an alien is ineligible for asylum is reviewed under the substantial evidence standard. Mgoian v. INS, 184 F.3d 1029, 1034 (9th Cir.1999); Andriasian v. INS, 180 F.3d 1033, 1040 (9th Cir.1999). The court “must sustain factual findings if supported by reasonable, substantial, and probative evidence in the record.” Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir. 2003). The test for reversal of an agency finding of ineligibility is whether the evidence presented “was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). See also Mgoian, 184 F.3d at 1034 (“we reverse only if the evidence presented to the BIA was so compelling that no reasonable trier of fact could fail to find the requisite fear of persecution.”). To prevail on a withholding of deportation claim, an applicant must show that there is a clear probability of persecution if he or she returns. Arteaga v. INS, 836 F.2d 1227(9th Cir.1988). Because the asylum standard is more lenient, a petitioner’s failure to establish eligibility for asylum forecloses the availability of withholding of deportation relief. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). III Petitioners challenge the deportation order claiming that the BIA erred in (1) failing to find a pattern or practice of persecution against individuals such as" }, { "docid": "22467683", "title": "", "text": "withholding of removal. Thomas v. Ashcroft, 359 F.3d 1169, 1174 (9th Cir.2004). II. Eligibility for Asylum The Attorney General may grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is one who is unwilling or unable to return to his or her native country because of past persecution, or a well-founded fear of future persecution, on account of the individual’s race, religion, nationality, membership in a particular social group, or political opinion. Id. § 1101(a)(42)(A). Njuguna claims a well-founded fear of future persecution in Kenya because of his political opinion. A well-founded fear has both subjective and objective components. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n. 9 (9th Cir.2003). Njuguna established the subjective component with his credible testimony. See Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). He has the burden of meeting the objective component by demonstrating a well-founded fear of persecution through credible, direct, and specific evidence. See Velarde, 140 F.3d at 1310. A “one in ten chance” that Njuguna will suffer persecution is enough. Id. (quoting Montecino v. INS, 915 F.2d 518, 520 (9th Cir.1990)). The treatment of Njuguna’s Kenyan relatives amounts to persecution. They have been imprisoned, beaten, cut with machetes, and threatened with further physical harm. See Navas v. INS, 217 F.3d 646, 658 (9th Cir.2000) (petitioner demonstrated persecution where he had been threatened with death, two of his family members were murdered, and his mother beaten); Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999) (physical harm consistently treated as persecution). Njuguna personally has not suffered persecution simply because his would be abusers cannot reach him. The lack of past persecution against him does not foreclose asylum eligibility. Gonzalez v. INS, 82 F.3d 903, 909-910 (9th Cir.1996) (violence against family members supports a petitioner’s well-founded fear if linked to petitioner). Some of the attacks against Njuguna’s family were accompanied by specific threats against Njuguna. In order to qualify for asylum based on a well-founded fear of persecution, the fear" }, { "docid": "22603413", "title": "", "text": "Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). Thus, we must deny the Petition unless Petitioner presented evidence “so compelling that no reasonable factfinder could find” that Petitioner has not established eligibility for asylum. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 816-17, 117 L.Ed.2d 38 (1992). 2. Legal Standards Governing Eligibility For Asylum Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b), gives the Attorney General discretion to grant asylum to a refugee. A refugee is an alien who is unwilling to return to the country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish eligibility based on a well-founded fear of persecution, the alien must have a subjectively genuine and objectively reasonable fear. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991). An alien satisfies the subjective component of this test by credibly testifying that the alien genuinely fears persecution. Cuadras v. United States INS, 910 F.2d 567, 570-71 (9th Cir.1990). An alien satisfies the objective component by pointing to “credible, direct, and specific evidence in the record ... that would support a reasonable fear of persecution.” Ghaly, 58 F.3d at 1428 (quoting Arriaga-Barrientos, 925 F.2d at 1178-79). Here, Petitioner has met the subjective component of the test because the immigration judge found her testimony that she fears persecution to be credible. (A.R. at 28-29); see also Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985) (stating that a reviewing court should give deference to an immigration judge’s credibility finding). The question thus becomes whether Petitioner can establish that a reasonable person in her circumstances would fear persecution on the basis of race or religion. Petitioner can do this by demonstrating that she suffered persecution in the past because \"[a]n alien who establishes past persecution is presumed to have a well-founded fear of future persecution.\" Gaya Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996). However, in order to establish a well-founded fear, \"[P]etitioner cannot simply prove that there" }, { "docid": "22994117", "title": "", "text": "FLETCHER, Circuit Judge: Petitioner Amel Gabriel Astrero, a native and citizen of the Philippines, appeals an order of the Board of Immigration Appeals affirming a decision of the Immigration Judge denying Astrero’s request for asylum, withholding of deportation, and suspension of deportation. The Board found that Astrero did not establish a well-founded fear of persecution based on either his political opinion or his membership in a particular social group and, therefore, he failed to establish his statutory eligibility for either asylum or withholding of deportation. The Board further found that, although Astrero established the requisite good moral character and seven years of continuous physical presence in the United States, he failed to show “extreme hardship” if he were returned to the Philippines and therefore, did not qualify for suspension of deportation. We affirm. I. This court must uphold the Board’s denial of asylum if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole”. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). Similarly, the Board’s decision as to whether to withhold deportation is reviewed for substantial evidence but of a clear probability of persecution as contrasted to well-founded fear required for asylum. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). The Board’s findings of fact are conclusive if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994). Under this standard the factual findings of the Board will be reversed only where the evidence is such that a reasonable fact-finder would be compelled to conclude that the requisite fear of persecution existed. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). The Board squarely addressed each of the incidents raised by Astrero concluding that these incidents did not, individually or as a whole, establish a well-founded fear of future persecution. The Board accepted, for purposes of analysis, that Astrero’s subjective fear of future persecution was genuine. However, the Board found that Astrero failed to meet his" }, { "docid": "22272500", "title": "", "text": "and probative evidence on the record considered as a whole.” Id. (quoting 8 U.S.C. § 1105a(a)(4)). Reversal is warranted only if the evidence presented was such that a reasonable fact-finder would be compelled to conclude that the petitioner was persecuted or has a well-founded fear of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” Id.; INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”). To establish eligibility based on past persecution, an asylum applicant must show “(1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.” Navas v. INS, 217 F.3d 646, 655-56 (9th Cir.2000) (footnotes omitted). Once past persecution has been established, “a presumption arises that a well-founded fear of future persecution exists.” Id. at 657 (citing 8 C.F.R. § 208.13(b)(1)). After reviewing the record, we conclude that the BIA’s determination that Padash failed to establish past persecution on account of his religion is supported by substantial evidence. Persecution has been defined as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995) (quotation omitted). “Discrimination, harassment, and violence by groups that the government is unwilling or unable to control can[] constitute persecution.” Singh v. INS, 94 F.3d 1353, 1359 (9th Cir.1996). “The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment [he] received rises to the level of persecution.” Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998). Padash’s testimony that two separate and unrelated groups of restaurant patrons initiated fights with his family' — • fights that did not result in any physical harm — and that during, the second incident a threat was made against him and his father, falls short of the showing necessary to compel a finding of persecution. Pa-dash has presented no evidence" }, { "docid": "22426747", "title": "", "text": "because neither ground cited by the IJ is supported by substantial evidence, we reject the adverse credibility determination and accept Marcos’s testimony as true. Kaur, 379 F.3d at 890. We turn to the merits of his claim. III. Eligibility for Asylum The IJ concluded that Marcos was ineligible for asylum both because he failed to demonstrate he had suffered past persecution and because hé did not have a well-founded fear of future persecution. The IJ’s finding regarding past persecution is supported by substantial evidence. Credible death threats such as Marcos received here can support a finding of past persecution. See, e.g., Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998) (holding that death threats from the NPA “are persuasive evidence of past persecution”). In Lim v. INS, however, we “avoid[ed] announcing a blanket rule that in every case threats, without more, compel a finding of past persecution.” 224 F.3d 929, 936 (9th Cir.2000). We noted that “[tjhreats standing alone ... constitute past persecution in only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’ ” Id.; see also Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). Here, we do not decide whether the evidence Marcos presented would permit a finding of past persecution; given our discussion in Lim, it is clear that Marcos has not presented evidence that compels such a finding. 224 F.3d at 936. We therefore do not disturb the IJ’s conclusion that Marcos has not demonstrated past persecution. Marcos is nonetheless eligible for asylum based on fear of future persecution because he has demonstrated a reasonable possibility that he will suffer persecution if he were to return to the Philippines. 8 C.F.R. § 208.13(a), (b)(2)(i)(B). To suffice under this standard, a future threat “need not be statistically more than fifty-pércent likely; ... even a one-tenth possibility of persecution might effect a well-founded fear.” Lim, 224 F.3d at 934. “For a fear to be well founded, it must be both subjectively genuine and objectively reasonable.” Id. The IJ’s conclusion that Marcos had not met his" }, { "docid": "22674017", "title": "", "text": "Persecution because of his ethnicity as an Albanian can qualify. See Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n. 5 (9th Cir.1999). A. Past persecution Substantial evidence supports the BIA’s finding that Hoxha had not suffered past persecution, which would have raised a rebuttable presumption of a well-founded fear of future persecution. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Persecution is “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Desir v. IIchert, 840 F.2d 723, 727 (9th Cir.1988) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969)). Although Hoxha’s experiences are disturbing and regrettable, they do not evince actions so severe as to compel a finding of past persecution. The unfulfilled threats by various Serbs against Hoxha constitute harassment rather than persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (“Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm.”). The one incident of physical violence against Hoxha was not connected with any particular threat and there is no evidence indicating that the incident was officially sponsored. There is no evidence that the attackers knew who Hoxha was or that they showed any continuing interest in him; Hoxha lived in Kosovo for another six months following the attack without experiencing any additional harm. See id. (considering the fact that the petitioner stayed in his native country after the attack without experiencing any future mistreatment in denying petitioner’s asylum claim); Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.2000) (same); see also Kamla Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (single incident of detention and beating did not compel finding of persecution). Hoxha, therefore, failed to present evidence compelling a finding of past persecution, and the BIA accordingly was not required to give Hoxha the benefit of a rebuttable presumption that his fears of future persecution were well founded. B. Well-founded fear of future persecution Hoxha may establish a well-founded fear of future persecution without the benefit of a" }, { "docid": "22333184", "title": "", "text": "fear was objectively reason able. Certainly the evidence does not “compel” such a finding as required by Elias-Zacarias. To reiterate what we said in Prasad v. INS, 47 F.3d 336 (9th Cir.1995), a panel may reverse the BIA’s asylum eligibility determination only if “ ‘the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’ ” Id. at 338 (quoting Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817). The record conclusively demonstrates that Ms. Aruta’s fear was not grounded in the reality of her situation either as of 1985, the year she left, or of July 10, 1989, the date of the IJ’s decision. Thus, her fear is not “well-founded” as required by the statute. Under the circumstances, the Board’s alternative conclusion that the alleged threat is not countrywide is irrelevant. IV. WITHHOLDING OF DEPORTATION Withholding of deportation requires a higher standard of proof than asylum. The applicant must show a clear probability of persecution. The applicant must establish that it is “more likely than not that the alien will suffer persecution.” Elnager v. INS, 930 F.2d 784, 786 (9th Cir.1991). Because Ms. Aruta did not satisfy the lesser standard required for. asylum, perforce she fails to show an entitlement to withholding of deportation. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). PETITION DENIED. . A barangay is like a neighborhood or borough. Don Andres is a barangay in the city of Ipil, where Ms. Aruta’s father was on the local council. The barangay captain is the chief executive of the barangay. HUG, Chief Judge, dissenting. I respectfully dissent. The focus of this appeal is on the question of whether Vivian Aruta’s fear of persecution is objectively reasonable, so as to qualify her for asylum. The BIA did not question her credibility or the genuineness of her subjective fear. On the basis of the very strong evidence presented from Aruta’s family and knowledgable persons from the Philippines and experts on the Philippines, regarding the likelihood of persecution, it cannot be said that the fear she has is objectively unreasonable." }, { "docid": "22464070", "title": "", "text": "Cir.2002). We must uphold the BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). The BIA’s decision can be overturned “only where the evidence is such that a reasonable factfinder would be compelled to conclude that the requisite fear of persecution existed.” Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Because neither the IJ nor the BIA made negative credibility findings, we accept Petitioners’ testimony as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000). We also review for substantial evidence the BIA’s determination that Petitioners have failed to meet the higher burden required for withholding of removal. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). DISCUSSION I. Asylum Section 208(a) of the Immigration and Nationality Act (“INA”) affords the Attorney General discretion to grant political asylum to any alien deemed to be a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is an alien who is unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). Petitioners claim they have a well-founded fear of future persecution in Pakistan because of an imputed political opinion. To establish asylum eligibility on the basis of a well-founded fear of future persecution, Petitioners’ fear “must be both subjectively genuine and objectively reasonable.” Ghaly, 58 F.3d at 1428. “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Prasad, v. INS, 47 F.3d 336, 338 (9th Cir.1995). Because the IJ found Petitioners’ factual testimony regarding their fear of persecution to be credible, Petitioners satisfy the subjective element and our inquiry turns solely on the objective prong. See Fisher v. INS, 79 F.3d 955, 960-61 (9th Cir.1996). Petitioners bear the burden of meeting the objective component by demonstrating a well-founded fear of persecution through “credible, direct, and specific evidence in" }, { "docid": "8604564", "title": "", "text": "giving rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). In the alternative, the objective component can be satisfied by “ ‘adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.’ ” Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)). Ill We turn to analyze whether Gu has established by compelling evidence either past persecution or a well-founded fear of persecution. We answer in the negative and conclude that the BIA’s decision to deny Gu’s asylum claim is supported by substantial evidence. A Persecution is an “extreme concept,” Ghaly v. INS, 58 F.3d. 1425, 1431 (9th Cir.1995), and has been defined as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Singh v. INS, 134 F.3d 962, 967 (1998) (quoting Ghaly, 58 F.3d at 1431) (internal citation and quotation marks omitted). Because persecution is an “extreme concept,” it “does not include every sort of treatment our society regards as offensive.” Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir.2001) (quoting Ghaly, 58 F.3d at 1431). We have recognized that, in some circumstances, detentions combined with physical attacks which occur on account of a protected ground can establish persecution. In Guo v. Ashcroft, 361 F.3d 1194 (9th Cir.2004), the asylum applicant was arrested while he was in church. During his day-and-a-half-long detention, Guo (not to be confhsed with Xiaoguang Gu, the petitioner in the instant case), was struck in the face, kicked in the stomach, required to perform repeated pushups and forced to sign a document saying that he promised not to believe in Christianity. Id. at 1197. Less than two weeks later, Guo tried to stop a police officer from removing a cross from a tomb. The police officer used an electrically-charged baton to subdue Guo, then two police officers held his arms and kicked his legs, causing him to fall. Guo was then taken to the police" }, { "docid": "22341669", "title": "", "text": "Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004). To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies the subjective compo-' nent by credibly testifying that[he] genuinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). “The objective component can be established in two different ways.” Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999). One way to satisfy the objective component is to prove persecution in the past, giving rise to a rebuttable presumption that a well-founded fear of future persecution exists. The second way is to show a good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution. Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (internal quotations and citations omitted). While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Sael, 386 F.3d at 925 (quoting Knezevic, 367 F.3d at 1212). We look at the totality of the circumstances in deciding whether a finding of persecution is compelled. See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (“The key question is whether, looking at the cumulative effect of all the incidents a petitioner has suffered, the treatment [he or] she received rises to the level of persecution.”). Because Ahmed testified credibly, he has satisfied the subjective component. See Sael, 386 F.3d at 924. Therefore, to demonstrate that he is eligible for asylum, he must satisfy the objective component by demonstrating past persecution or a well-founded fear of future persecution. See Ladha, 215 F.3d at 897. B. Analysis 1. Past Persecution — Political Opinion Ahmed contends that he suffered persecution in Bangladesh on account of his political opinion. To demonstrate past persecution on account of a political" }, { "docid": "22709633", "title": "", "text": "account of race, religion, nationality, membership in a particular social group, or political opinion. See Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004). We review the IJ’s factual findings for substantial evidence. See id. Movsisian first challenges the IJ’s denial of asylum and withholding, and contends that the evidence compels a finding that he has a well-founded fear of persecution on account of his conscientious objection to military service, and his Pentecostal beliefs. Considering only the evidence presented to the IJ, we disagree. First, forced conscription or punishment for evasion of military duty generally does not constitute persecution on account of a protected ground. See Castillo v. INS, 951 F.2d 1117, 1122 (9th Cir.1991) (“The fact that a nation forces a citizen to serve in the armed forces along with the rest of the country’s population does not amount to persecution.”). Second, Movsisian presented no evidence that the Armenian government would target him for conscription or punishment on account of his religion or other protected ground. See Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir.1992) (holding that religious conscientious objectors did not establish religious persecution because they did not show that the government intended to persecute them for their beliefs). Finally, we conclude that the evidence is insufficient to compel a finding that Movsisian has a well-founded fear of persecution on account of his religious beliefs. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir.2003) (holding that petitioner’s fear of future religious persecution was speculative). In failing to qualify for asylum, Movsisian necessarily failed to meet the more stringent standard of proof for withholding of deportation. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). B. Motion to Reopen and Remand Movsisian also challenges the BIA’s denial of his motion to reopen asylum proceedings. The motion to reopen, filed while his appeal was pending before the BIA, is treated as a motion to remand to the IJ for further proceedings. See Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir.1987); see also 8 C.F.R. § 1003.2(c)(4). We review the BIA’s denial of a motion to reopen" }, { "docid": "8604563", "title": "", "text": "IJ’s oral decision as a guide to what lay behind the BIA’s conclusion.” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). B To prevail on his asylum claim, pursuant to the Immigration and Nationality Act (“Act”), Gu must establish that he is a refugee. A “refugee” is defined as an alien who is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Refugee status is available if the applicant demonstrates either past persecution or a well-founded fear of persecution. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000). A well-founded fear of future persecution must be both “subjectively genuine” and “objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003). A petitioner’s credible testimony that he or she genuinely fears persecution on account of a protected ground satisfies the subjective component. See id. The objective component is satisfied if the applicant demonstrates past persecution, automatically giving rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1). In the alternative, the objective component can be satisfied by “ ‘adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.’ ” Ladha v. INS, 215 F.3d 889, 897 (9th Cir.2000) (quoting Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999)). Ill We turn to analyze whether Gu has established by compelling evidence either past persecution or a well-founded fear of persecution. We answer in the negative and conclude that the BIA’s decision to deny Gu’s asylum claim is supported by substantial evidence. A Persecution is an “extreme concept,” Ghaly v. INS, 58 F.3d. 1425, 1431 (9th Cir.1995), and has been defined as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Singh v. INS, 134 F.3d 962, 967 (1998) (quoting Ghaly, 58 F.3d at 1431) (internal citation and quotation marks omitted). Because persecution" }, { "docid": "22671542", "title": "", "text": "been questioned at home, Chebchoub testified that they have never been arrested or taken into custody. In October 1995 Chebchoub applied for relief from deportation proceedings, claiming persecution by the Moroccan government on the basis of political opinion, imputed political opinion, and social group. In a decision dated May 14, 1997, the IJ denied Chebchoub’s application for asylum and withholding of deportation based upon an adverse credibility finding, concluding that Chebchoub’s testimony was so “inconsistent, vague and implausible as to indicate that the testimony must have been fraudulent.” Chebchoub appealed to the Board, which conducted a de novo review of the record. Citing credibility concerns and a failure to supply corroborating evidence, the Board dismissed Chebchoub’s appeal because he failed to meet his burden of establishing eligibility for asylum or withholding of deportation. II After a Board’s de novo examination of the record, we review the Board’s factual determinations—including its credibility findings—and its determination of an applicant’s eligibility for asylum, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The substantial evidence standard is highly deferential to the Board, and for us to overturn the Board’s decision, Chebchoub must show that the evidence compels reversal. Pedro-Mateo, 224 F.3d at 1150, citing Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812. Thus, Chebchoub cannot prevail unless he demonstrates that any reasonable factfinder would necessarily conclude that he is eligible for relief from deportation. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc). Chebchoub bears the burden of establishing his eligibility for asylum and withholding of deportation. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). To be eligible for asylum, Chebchoub must demonstrate that he has suffered past persecution or has a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. Pedro-Mateo, 224 F.3d at 1150. The subjective component may be satisfied by the applicant’s testimony. Cordon-Garcia v. INS, 204 F.3d" }, { "docid": "22556562", "title": "", "text": "children. This discussion, as the government properly notes, is relevant only to claims of future persecution. We hold that the IJ properly considered whether Mans-our demonstrated past persecution and/or a well-founded fear of future persecution. We believe that substantial evidence supports the IJ’s conclusion that Mansour has not suffered past persecution. The testimony and evidence presented by Petitioners does demonstrate that Coptic Christians are subject to discrimination within Egypt on the basis of their religion. However, the evidence does not compel us to conclude that the discrimination rose to the level of persecution. As the IJ stated, Petitioners failed to establish that those that “bothered” or “mistreated” them were individuals that the government was unable or unwilling to control and noted that the relevant State Department Profile reflected the fact that Egyptian authorities have prosecuted those who have committed “acts of terrorism” against Christians. This case is similar to Ghaly v. INS, a case involving a Coptic Christian petitioner. 58 F.3d at 1431. There we concluded that “where private discrimination is neither condoned by the state nor the prevailing social norm, it clearly does not amount to ‘persecution’ within the meaning of the Act.” Id. We recognize that in some cases discrimination may rise to the level of persecution. See Duarte de Guinac v. INS, 179 F.3d 1156, 1161-63 (9th Cir.1999); Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998). The record demonstrates that Petitioners have been the unfortunate targets of discrimination because of their religion; however, the discrimination suffered by Petitioners does not constitute persecution within the meaning of the Act. Mansour has not demonstrated that he has a well-founded fear of future persecution because of his religion. “An alien’s ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable.” Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir.2003). To satisfy the objective component, an alien must show that he has suffered from past persecution or that he has a “good reason to fear future persecution by adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution.” Id." }, { "docid": "22464071", "title": "", "text": "alien who is unable or unwilling to return to his or her country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1101(a)(42)(A). Petitioners claim they have a well-founded fear of future persecution in Pakistan because of an imputed political opinion. To establish asylum eligibility on the basis of a well-founded fear of future persecution, Petitioners’ fear “must be both subjectively genuine and objectively reasonable.” Ghaly, 58 F.3d at 1428. “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Prasad, v. INS, 47 F.3d 336, 338 (9th Cir.1995). Because the IJ found Petitioners’ factual testimony regarding their fear of persecution to be credible, Petitioners satisfy the subjective element and our inquiry turns solely on the objective prong. See Fisher v. INS, 79 F.3d 955, 960-61 (9th Cir.1996). Petitioners bear the burden of meeting the objective component by demonstrating a well-founded fear of persecution through “credible, direct, and specific evidence in the record.” Id. at 960. We conclude that Petitioners met that burden. “To effect a well-founded fear, a threat need not be statistically more than fifty-percent likely; the Supreme Court has suggested that even a one-tenth possibility of persecution might effect a well-founded fear.” Lim, 224 F.3d at 934-935 (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). Contrary to the BIA’s assertion, this case is not similar to Quintanilla-Ticas v. INS, 783 F.2d 955 (9th Cir.1986), in which we held that petitioners did not establish a well-founded fear of persecution. In that case, we held that “[t]here was no indication in the record that petitioners would be subject to persecution on the basis of Quintanilla-Ticas’ past association with the military,” and that, “[e]ven if petitioners would face some danger in their home town because of Quintanilla-Ticas’ former military status, deportation to El Salvador [did] not require petitioners to return to the area of the country where they formerly lived.” Id. at 957. Here, by contrast, there is credible," }, { "docid": "22079492", "title": "", "text": "officials imputed a political opinion to Al-Saher, Al-Saher was not persecuted on account of the imputed political opinion. “[Persecution is an extreme concept that does not include every sort of treatment our society regards as offensive.” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). Al-Saher testified that following his third arrest he was detained for a period of five or six days. However, he also stated that he was not beaten, tortured, or threatened prior to his escape from the third detention. While we do not know if Al-Saher would have been beaten if he had remained in custody, nothing that occurred prior to his escape from the third detention rises to the level of persecution. Thus, the record does not compel the conclusion that the BIA erred in finding that Al-Saher failed to establish past persecution as a result of his political opinion. Substantial evidence also supports the BIA’s determination that Al-Saher failed to prove a well-founded fear of future persecution. A well-founded fear of future persecution must be based on “race, religion, nationality, membership in a particular social group, or political opinion.” See Chanchavac v. INS, 207 F.3d 584, 589 (9th Cir.2000). Al-Saher’s first arrest resulted because he misrepresented his religion to the military and the second arrest involved a security concern. These arrests fail to establish that Al-Saher has a well-founded fear of persecution on account of an enumerated ground. As previously discussed, the treatment during his third detention did not establish persecution. Thus, the record does not compel a conclusion that the BIA erred in denying asylum based on a well-founded fear of future persecution on account of one of the five statutory grounds. Because Al-Saher failed to establish his eligibility for asylum, he necessarily failed to establish a .claim for withholding of deportation. See Ghaly, 58 F.3d at 1429. Convention Against Torture Al-Saher also seeks relief from deportation under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “Convention”). The Foreign Affairs Reform and Restructuring Act of 1998 (“Foreign Affairs Reform" }, { "docid": "22674016", "title": "", "text": "committed against ethnic Albanians in Kosovo. The Immigration Judge (“IJ”) found Hoxha’s testimony credible, but ruled that the lifetime of insults and one-time beating Hoxha experienced did not amount to past persecution, and that Hoxha had not established a well-founded fear of future persecution. In finding Hoxha’s fear unfounded, the IJ noted that Hoxha’s family has continued to live in Kosovo and has not experienced any mistreatment. Because Hoxha was found ineligible for asylum, he also failed to meet the higher standard required for withholding of deportation. Hoxha appealed to the BIA. The BIA affirmed the IJ’s decision and also found that the evidence presented by Hoxha did not demonstrate a pattern or practice of persecution. Hoxha then filed a timely petition for review with this court. II To be eligible for a discretionary grant of asylum, Hoxha must demonstrate that he is unwilling to return to Kosovo “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion.” 8 U.S.C. § 1101(a)(42). Persecution because of his ethnicity as an Albanian can qualify. See Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n. 5 (9th Cir.1999). A. Past persecution Substantial evidence supports the BIA’s finding that Hoxha had not suffered past persecution, which would have raised a rebuttable presumption of a well-founded fear of future persecution. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000). Persecution is “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Desir v. IIchert, 840 F.2d 723, 727 (9th Cir.1988) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969)). Although Hoxha’s experiences are disturbing and regrettable, they do not evince actions so severe as to compel a finding of past persecution. The unfulfilled threats by various Serbs against Hoxha constitute harassment rather than persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000) (“Threats themselves are sometimes hollow and, while uniformly unpleasant, often do not effect significant actual suffering or harm.”). The one incident of physical" }, { "docid": "22230716", "title": "", "text": "political asylum because he found Abedini’s testimony to be credible and that he had a well-founded fear of persecution based on his religious and political ideas. The Board of Immigration Appeals reversed on two grounds: one, that even assuming Abedi-ni’s testimony was truthful, he had not established a well-founded fear of persecution on account of any of the grounds enumerated in the Immigration and Nationality Act; and two. that Abedini’s testimony was not credible. The Board further denied Abedini’s request for voluntary departure. DISCUSSION I. Standard of Review. We review de novo the Board's determination of purely legal questions re garding the requirements of the Immigration and Nationality Act. Alonzo v. INS, 915 F.2d 546, 548 (9th Cir.1990). We review factual findings underlying the Board’s denial of asylum and withholding of deportation under the substantial evidence standard, Alonzo, 915 F.2d at 548, and will reverse only if the evidence presented to the Board was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. INS v. Zacarias, — U.S.-,-, 112 S.Ct. 812, 815, 817, 117 L.Ed.2d 38 (1992). Discretionary denials of asylum and of voluntary departure are reviewed for abuse of discretion. Cunanan v. INS, 856 F.2d 1373, 1347 (9th Cir.1988). II. Denial of Asylum. Under Section 208(a) of the Refugee Act of 1980 (codified in the Immigration and Nationality Act at 8 U.S.C. § 1158(a)), the Attorney General has discretion to grant asylum to an applicant who is unable to return to his country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To meet the statutory criteria of a “well-founded fear of persecution,” the applicant must show that his fear is both subjectively genuine and objectively reasonable. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452-1453 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The objective component requires a showing by “credible, direct, and specific evidence” of facts that would support a reasonable fear that the applicant faces persecution. Rodriguez-Rivera v." }, { "docid": "22927011", "title": "", "text": "asylum and withholding. The BIA determined that it had to accept Ruano’s testimony as credible, given that the IJ made no adverse credibility finding. However, the BIA concluded that even taking Ruano’s story at face value, he was not “harmed to the level of persecution.” More specifical ly, the BIA relied on our decision in Lim v. INS, 224 F.3d 929 (9th Cir.2000), to conclude that the threats Ruano received did not constitute past persecution. In addition, the BIA held that Ruano could not show a well-founded fear of future persecution because his fear was not objectively reasonable and because he would be able to relocate to another part of Guatemala and avoid persecution. STANDARD OF REVIEW This case falls under IIRIRA’s transitional rules. Ruano’s petition for review is therefore before the panel under formerly-existing 8 U.S.C. § 1105a(a), which allows a Court of Appeals to review denials of discretionary relief by the INS. Under § 1105a(a), the panel must uphold the BIA’s denial of asylum if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Reyes-Guerrero v. INS, 192 F.3d 1241, 1244 (9th Cir.1999) (citations and internal quotation marks omitted); INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (stating that the BIA should be reversed only if no reasonable factfinder could find the petitioner ineligible for asylum). The BIA’s denial of withholding of deportation is similarly reviewed for substantial evidence. Id. DISCUSSION Because neither the BIA nor the IJ made an adverse credibility finding, we accept Ruano’s testimony before the IJ as true. Lim, 224 F.3d at 933. Ruano’s testimony, along with documentary evidence in the record, indicates that he was targeted for death threats and harassment (by armed men) at least in part because of his membership in UCN. Ante at 1157-58; see also Lim, 224 F.3d at 934 (explaining that persecution is on account of political opinion so long as the political opinion is at least part of the motivation for the persecution). Because he was targeted because of his political beliefs, and accepting" } ]

[ { "docid": "12902377", "title": "", "text": "States, 182 Ct.Cl. 586, 590, 390 F.2d 711, 713 (1968). The first issue is whether the discrepancy, omission or ambiguity was drastic, glaring or patent. Beacon Constr. Co. v. United States, 161 C.Cl. 1, 314 F.2d 501 (1963); WPC Enterprises, Inc. v. United States, 163 Ct.Cl. 1, 323 F.2d 874 (1963). If this issue is answered in the negative, we must reach the second issue, whether plaintiff’s interpretation of the ambiguous provisions was reasonable. WPC Enterprises, Inc., supra; Gorn Corporation v. United States, 191 Ct.Cl.-, 424 F.2d 588 (April 1970). Considering the first issue, there was in actuality a discrepancy on the face of this contract between the specifications, the drawings with the notation, and the list of alternates. Kitchen exhaust fans were to be installed “where shown,” yet the notation on the drawings said fans were to be bid ;as an alternate. Then there was no alternate for a kitchen exhaust fan. But this is not the kind of “glaring” discrepancy that we have said must exist before a contractor is required to shoulder the burden of seeking clarification of the government’s ambiguous specifications from a contracting officer. In Beacon Constr. Co., supra, we found that something was “gravely askew” with the contract papers. The discrepancy there was so manifest that this court charged the contractor with knowledge of it. Therefore, we held that, “If the bidder fails to resort to the remedy proffered by the Government, a patent and glaring discrepancy * * * should be taken against him * * lid. 161 Ct.Cl. at 7, 314 F.2d at 504.] But the court was careful to point out that not all ambiguities were to be held against the bidder, even in the presence of a clause in the Invitation for Bids such as the one presently before us, requiring the bidder to obtain clarification from the contracting officer. We said in Beacon, supra: * * * We do not mean to rule that, under such contract provisions, the contractor must at his peril remove any possible ambiguity prior to bidding; what we do hold is that, when he" } ]

[ { "docid": "7558881", "title": "", "text": "628-629 (1974). Evidence of trade practice and custom, however, may be considered to explain even facially unambiguous terms “where a party makes a showing that it relied reasonably on a competing interpretation of the words when it entered into the contract.” Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed.Cir.1999). If a contract term does not have a plain meaning, it is ambiguous, and the Court must then determine whether the ambiguity is patent or latent. L. Rosenman Corp. v. United States, 182 Ct.Cl. 586, 390 F.2d 711, 713 (1968). A patent ambiguity in a contract is one that is, on its face, glaring and obvious. This has been described as encompassing “an obvious omission, inconsistency, or discrepancy of significance,” Beacon Construction Co. of Mass. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963), or “an obvious error in drafting, a gross discrepancy, or an inadvertent but glaring gap,” WPC Enterprises, Inc. v. United States, 163 Ct.Cl. 1, 323 F.2d 874, 876 (1963). See also Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1435 (Fed.Cir.1992); Blount Bros. Constr. Co. v. United States, 171 Ct.Cl. 478, 346 F.2d 962, 972-73 (1965). The Court must determine whether a reasonable person would find the ambiguity to be patent and glaring, on an ad hoc basis. L. Rosenman Corp., 390 F.2d at 713; see also Newsom v. United States, 230 Ct.Cl. 301, 676 F.2d 647, 650 (1982). A contractor may not rely on its own interpretation of patent ambiguities, but instead has a duty to seek a clarification from the government before submitting its bid. See P.R. Burke Corp. v. United States, 277 F.3d 1346, 1355 (Fed.Cir.2002); Newsom, 676 F.2d at 650; Blount Bros., 346 F.2d at 973. A bidder who does not inquire into a patent ambiguity assumes the risk for any unanticipated costs incurred as a result. Jamsar, Inc. v. United States, 194 Ct.Cl. 819, 442 F.2d 930, 935 (1971); Dynamics Corp. v. United States, 10 Cl.Ct. 275, 280 (1986). If not found to be patent, then an ambiguity is latent. The Court will adopt a contractor’s" }, { "docid": "11120274", "title": "", "text": "limit line) was to be included under the contract as executed by the parties. It is undisputed that the Board’s conclusion is not final and binding on this court since it involves contract interpretation which is a question of law. International Telephone and Telegraph v. United States, 197 Ct. Cl. 11, 20, 453 F. 2d 1283, 1288 (1972); HRH Constr. Corp. v. United States, 192 Ct. Cl. 912, 918, 428 F. 2d 1267, 1271 (1970); Paschen Contractors, Inc. v. United States, 190 Ct. Cl. 177, 180, 418 F. 2d 1360, 1361 (1969). Plaintiff interpreted the notations on the drawings concerning the additional work as merely “informational”, i.e. the notations were for coordination purposes between the plaintiff and the other contractors who plaintiff thought would be doing the additional work. Plaintiff, feeling that this was a reasonable interpretation, would have this court invoke the contra proferentem rule Whether or not this was a reasonable interpretation is not material, because the discrepancy in this case created more than a mere ambiguity; it evidenced an obvious omission on tbe part of the government. This imposed upon tbe contractor a duty to inquire if be intended to benefit from bis interpretation in the future. Space Corp. v. United States, 200 Ct. Cl. 1, 5, 470 F. 2d 536, 539 (1972); Allied Contractors, Inc. v. United States, 180 Ct. Cl. 1057, 1064, 381 F. 2d 995, 1000 (1967); Beacon Constr. Co. v. United States, 161 Ct. Cl. 1, 7, 314 F. 2d 501, 504 (1963). Prior -to submission of its bid, plaintiff received the revised drawings which reflected the new work without altering the contract limit line. Plaintiff also received additional detailed drawings which described only the work outside of the limit line. There would have been no reason for the government to send these detailed drawings if the contractor was not meant to include this additional work when submitting its bid. This knowledgeable and experienced contractor should also have known that it was unlikely that the government specifications would have required laying pipe to an imaginary point without any instructions as to capping or" }, { "docid": "23694368", "title": "", "text": "a contractor’s interpretation cannot be reasonable “if the ambiguity is obvious.” Jamsar, Inc. v. United States, 194 Ct.Cl. 819, 442 F.2d 930, 934 (1971). Emerald Isle Electric, Inc. v. United States held that “[a] patent ambiguity is generally defined as an ‘obvious omission, inconsistency or discrepancy of significance.’ ” Emerald Isle Elec., Inc. v. United States, 28 Fed.Cl. 71, 73 (1993) (quoting Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963)). Where a patent ambiguity exists in contract specifications, prospective contractors have a duty to clarify the ambiguity prior to bidding on the contract. J.B. Steel, Inc. v. United States, 810 F.2d 1139 (Fed.Cir.1987); S.O.G. 546 F.2d at 370. Plaintiff failed to submit its question in writing, failed to get a written clarification, and never contacted the contracting officer about the discrepancy prior to executing the contract. The purpose of placing the burden of inquiry on prospective contractors is to allow for correction of errors before award and ensure that all prospective contractors bid on the basis of identical specifications. Monarch Painting Corp. v. United States, 16 Cl.Ct. 280, 287 (1989) (citing Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963)). Without inquiring further of defendant, plaintiff assumed the risk of any error when it based its bid on an assumed design that it later admitted was incomplete. See McNamara Constr., Ltd. v. United States, 206 Ct.Cl. 1, 509 F.2d 1166, 1169 (1975) (citing cases), holding that a contractor working under a fixed-price contract assumes the risk of unexpected costs, and Deleon Construction Corp. v. United States, where the Court of Federal Claims concluded that “[h]ad [the contractor] inquired in writing or sought clarification from the contracting officer, this misunderstanding, and this litigation, could have been avoided.” Deleon Constr. Corp. v. United States, 27 Fed.Cl. 634, 638 (1993). Because plaintiff never sought clarification prior to its bid for what it admits is a “material omission,” it cannot recover costs for this claim. See S.O.G., 546 F.2d at 370-71. The cost of this folly rests squarely with plaintiff. Moreover, according to" }, { "docid": "23340082", "title": "", "text": "3, 171 Ct. Cl. at 481-82, 346 F.2d at 964; 41 U.S.C. § 609(b) (Supp. III 1979). HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 919, 428 F.2d at 1271; L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 590, 390 F.2d 711, 713 (1968). Mountain Home Contractors v. United States, 192 Ct. Cl. 16, 20-21, 425 F.2d 1260, 1263 (1970). Id., 192 Ct. Cl. at 22, 425 F.2d at 1264. Id., 192 Ct. Cl. at 21, 425 F.2d at 1263, See, e.g., Highway Products, Inc. v. United States, 208 Ct. Cl. 926, 942, 530 F.2d 911, 920 (1976); Space Corp. v. United States, 200 Ct. Cl. 1, 6, 470 F.2d 536, 539 (1972); HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 919, 428 F.2d at 1271; Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 6-7, 314 F.2d at 504. If the court finds that a patent ambiguity did not exist, then the reasonableness of the contractor’s interpretation becomes crucial in deciding whether the normal contra proferentem rule applies. Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 5 n.2, 314 F.2d at 503 n.2. HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 918, 428 F.2d at 1271. Mountain Home Contractors v. United States, supra note 7, 192 Ct. Cl. at 19, 425 F.2d at 1262. See HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 918, 428 F.2d at 1271. Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 4-5, 314 F.2d at 502-03. Id. See HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 918, 428 F.2d at 1271." }, { "docid": "19961285", "title": "", "text": "[assigned as system manager but may have duties as project superintendent in addition to quality control.] Guide Specification, Section 01440, at 5 (Jan. 1991). And, in another version of the Guide Specification, the Guide states: sjc * jjc * Note: Use second option in next paragraph for complex projects where CQC system manager shall be a full time manager with no other duties. £ as sjs sj: sj: s): 3.4.2.2 CQC System Manager The CQC system manager shall be [assigned as system manager but may have duties as project superintendent in addition to quality control] [assigned no other duties]. Guide Specification, Section 01440, at 4. As the Corps chose neither option when drafting its IFB, it cannot claim that the policy on simultaneous performance of duties was explicitly set out. The court finds that although SC-30(4)(a) could have been clearer its language does not give rise to a patent ambiguity, as defendant argues. See, e.g., Monarch Painting Corp. v. United States, 16 Cl.Ct. 280 (1989), where an ambiguity in a painting contract as to trim work and method of payment did rise to level of patent ambiguity; Newsom v. United States, 230 Ct.Cl. 301, 676 F.2d 647 (1982), where a discrepancy between the specifications and drawings created a patent ambiguity. Therefore, plaintiff was under no duty to inquire about the meaning of SC-30(4)(a) before submitting its bid, as defendant contends. See Newsom, 676 F.2d at 650. Nevertheless, the court is mindful of the policies behind this duty. See id. (citing S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 546 F.2d 367, 370-71 (1976); Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963)). According to the two-step test articulated in Mountain Home Contractors v. United States, only if a court finds that a patent ambiguity is not present does the court then inquire into the reasonableness of the contract interpretation. Mountain Home Contractors v. United States, 192 Ct.Cl. 16, 425 F.2d 1260, 1263 (1970). As the court finds that no patent ambiguity existed here, it now considers whether or not plaintiffs interpretation was reasonable. The" }, { "docid": "7558880", "title": "", "text": "See, e.g., Moran v. Prather, 90 U.S. 492, 499, 23 L.Ed. 121 (1874); McAbee Constr., Inc. v. United States, 97 F.3d 1431, 1435 (Fed.Cir.1996); Elden v. United States, 223 Ct.Cl. 239, 617 F.2d 254, 260-61 (1980). “A contract term is unambiguous if there is only one reasonable interpretation.” C. Sanchez & Son, 6 F.3d at 1544; see also Edward R. Marden Corp. v. United States, 803 F.2d 701, 705 (Fed.Cir. 1986). The plain meaning of a contract term is “the meaning derived from the contract by a reasonably intelligent person acquainted with the contemporary circumstances.” Firestone Tire & Rubber Co. v. United States, 195 Ct.Cl. 21, 444 F.2d 547, 551 (1971); see also Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 351 F.2d 972, 975 (1965). If such a plain meaning exists, the Court would not normally consider extrinsic evidence concerning the meaning of unambiguous terms. See Brawley v. United States, 96 U.S. 168, 173-174, 13 Ct.Cl. 521, 24 L.Ed. 622 (1878); Butz Eng’g Corp. v. United States, 204 Ct.Cl. 561, 499 F.2d 619, 628-629 (1974). Evidence of trade practice and custom, however, may be considered to explain even facially unambiguous terms “where a party makes a showing that it relied reasonably on a competing interpretation of the words when it entered into the contract.” Metric Constructors, Inc. v. NASA, 169 F.3d 747, 752 (Fed.Cir.1999). If a contract term does not have a plain meaning, it is ambiguous, and the Court must then determine whether the ambiguity is patent or latent. L. Rosenman Corp. v. United States, 182 Ct.Cl. 586, 390 F.2d 711, 713 (1968). A patent ambiguity in a contract is one that is, on its face, glaring and obvious. This has been described as encompassing “an obvious omission, inconsistency, or discrepancy of significance,” Beacon Construction Co. of Mass. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963), or “an obvious error in drafting, a gross discrepancy, or an inadvertent but glaring gap,” WPC Enterprises, Inc. v. United States, 163 Ct.Cl. 1, 323 F.2d 874, 876 (1963). See also Interstate Gen. Gov’t Contractors, Inc. v. Stone," }, { "docid": "23041553", "title": "", "text": "in preparing their bids and then, after the award, seeking equitable adjustments to perform the additional work the government actually wanted. See Interwest Constr. v. Brown, 29 F.3d 611, 616 (Fed.Cir.1994); S.O.G. of Ark. v. United States, 212 Ct.Cl. 125, 546 F.2d 367, 371 (1976). While this court has invoked the patent ambiguity doctrine in appropriate cases, it has not given the doctrine broad application. Because the doctrine has the effect of relieving the government from the consequences of its own poorly drafted contracts, the doctrine has been applied only to contract ambiguities that are judged so “patent and glaring” that it is unreasonable for a contractor not to discover and inquire about them. See Beacon Constr. Co., 314 F.2d at 504. More subtle ambiguities are deemed latent and are accorded an interpretation favorable to the contractor under the doctrine of contra proferentum. See Interstate Gen. Gov’t Contractors, Inc., 980 F.2d at 1434. In this case, the contradictory provisions in the contract were so apparent that Triax had a duty to ask for clarification before bidding. Although Triax argues that it was not aware of the inconsistency among the contract terms at the time it submitted its bid, the presence or absence of a patent ambiguity is not determined by the contractor’s actual knowledge, but rather by what a reasonable contractor would have perceived in studying the bid packet. See HRH Constr. Corp., 428 F.2d at 1272; J.A. Jones Constr. Co. v. United States, 184 Ct.Cl. 1, 395 F.2d 783, 790 (1968). To the extent Triax was unaware of the problems with the contract, that lack of recognition can be ascribed to its unreasonable interpretation of the language of the painting specifications. There is also no legal force to Triax’s claim that its reading of the contract would have resulted in a superior product. Even if true, a contractor is not absolved of the responsibility to inquire about a patent ambiguity simply because the contractor’s interpretation would result in a commercially sensible product. See Fortec Constructors, 760 F.2d at 1291. Substantial portions of the contract address painting requirements. When the" }, { "docid": "22072272", "title": "", "text": "or performance, that is the interpretation which will be adopted — unless the parties’ intention is otherwise affirmatively revealed. Peter Kiewit Sons’ Co. v. United States, 109 Ct.Cl. 390, 418 (1947); First-Citizens Bank & Trust Co. v. United States, 76 F.Supp. 250, 266, 110 Ct.Cl. 280, 310 (1948); Western Contracting Corp. v. United States 144 Ct.Cl. 318, 326 (1958); W. H. Edwards Eng’r. Corp. v. United States, Ct.Cl. No. 218-59, decided April 5, 1963, slip op. pp. 9-10; Freed man v. United States, Ct.Cl., 320 F.2d 359, 365. This rule is fair both to the drafters and to those who are required to accept or reject the contract as proffered, without haggling. Although the potential contractor may have some duty to inquire about a major patent discrepancy, or obvious omission, or a drastic conflict in provisions (see Consolidated Eng’r. Co. v. United States, 98 Ct.Cl. 256, 280 (1943); Ring Constr. Corp. v. United States, 162 F.Supp. 190, 192, 142 Ct.Cl. 731, 734 (1958); Jefferson Constr. Co. v. United States, 151 Ct.Cl. 75, 89-91 (I960)), he is not normally required (absent a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, or possible differences in interpretation. The Government, as the author, has to shoulder the major task of seeing that within the zone of reasonableness the words of the agreement communicate the proper notions — as well as the main risk of a failure to carry that responsibility. If the defendant chafes under the continued application of this cheek, it can obtain a looser rein by a more meticulous writing of its contracts and especially of the specifications. Or it can shift the burden of ambiguity (to some extent) by inserting provisions in the contract clearly calling upon possible contractors aware of a problem-in-interpretation to seek an explanation before bidding. See Beacon Constr. Co. of Mass, v. United States, Ct.Cl., 314 F.2d 501, 504; Guyler v. United States, Ct.Cl., 314 F.2d 506, 510-511 (concurring opinion). If there were nothing more, the case would end here with a ruling for the plaintiff. But the defendant argues, and" }, { "docid": "13539071", "title": "", "text": "thereby reducing the likelihood of extra-cost claims on the project and expensive and time-consuming litigation. Newsom v. United States, 230 Ct.Cl. at 303, 676 F.2d at 649, 651; accord Interwest Constr. v. Brown, 29 F.3d 611, 616 (Fed.Cir.1994); see also S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 130-31, 546 F.2d 367, 370 (1976). “The rule that a contractor, before bidding, should attempt to have the Government resolve a patent ambiguity in the contract’s terms is a major device of preventative hygiene____” S.O.G. of Arkansas v. United States, 212 Ct.Cl. at 131, 546 F.2d at 370-71. Moreover, even if the ambiguity was latent and not perceived by the contractor, the contractor can prevail only if it can establish that at the time it bid the contract it actually interpreted the provision at issue in the manner it asserts. See Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1430-32 (Fed.Cir.1990); see also Lear Siegler Management Servs. Corp. v. United States, 867 F.2d 600, 603 (Fed.Cir.1989). Should the court find it necessary to examine evidence outside of the four corners of the contract to aid its interpretation, the conduct of the parties prior to the onset of dispute is entitled to “great weight.” General Warehouse Two, Inc. v. United States, 181 Ct.Cl. 180, 187, 389 F.2d 1016, 1020 (1967). Trade practice can be used to interpret a contract, but only if the contract is ambiguous. George Hyman Constr. Co. v. United States, 215 Ct.Cl. 70, 81, 564 F.2d 939, 945 (1977). “Neither a contractor’s belief nor contrary customary practice, however, can make an unambiguous contract provision ambiguous, or justify a departure from its terms.” R.B. Wright Constr Co. v. United States, 919 F.2d 1569, 1572 (Fed.Cir.1990); accord Metric Constructors, Inc. v. NASA, 169 F.3d at 751. Courts allow evidence of trade meaning, usage and custom to explain or define contract language, although such evidence may not be used to vary or contradict contract language. See George Hyman Constr. Co. v. United States, 832 F.2d 574, 581 (Fed.Cir.1987); W.G. Cornell Co. v. United States, 179 Ct.Cl. 651, 669-70, 376 F.2d 299, 311" }, { "docid": "9457408", "title": "", "text": "the contract to reflect price increases resulting from the June 8, 1962, changes. The unit price was increased to $31,456.51 and the total contract price was increased to $943,695.30. In a subsequent contract for 29 additional Hawk missile launchers, plaintiff was paid a unit price of $36,500. . Sun Shipbuilding & Dry Dock Co. v. United States, 393 F.2d 807, 815, 183 Ct.Cl. 358, 372 (1968); Bennett v. United States, 371 F.2d 859, 861, 178 Ct.Cl. 61, 64 (1967). . 68-2 BCA at 33,365. . Koppers Co. v. United States, 405 F.2d 554, 558 n.7, 186 Ct.Cl. 142, 147 n.7 (1968), and cases there cited. . Space Corp. v. United States, 470 F.2d 536, 538, 200 Ct.Cl. 1, 5 (1972). . Blount Bros. Constr. Co. v. United States, 346 F.2d 962, 972, 171 Ct.Cl. 478, 496 (1965). . Tecon Corp. v. United States, 411 F.2d 1262, 188 Ct.Cl. 15 (1969); WPC Enterprises, Inc. v. United States, 323 F.2d 874, 163 Ct.Cl. 1 (1963); Peter Kiewit Sons’ Co. v. United States, 109 Ct.Cl. 390 (1947). . Blount Bros. Constr. Co. v. United States, supra note 12, 346 F.2d at 973, 171 Ct.Cl. at 497. . Whittaker Corp. v. United States, 443 F.2d 1373, 195 Ct.Cl. 161 (1971); LaCrosse Garment Mfg. Co. v. United States, 432 F.2d 1377, 193 Ct.Cl. 168 (1970). . Dittmore-Freimuth Corp. v. United States, 390 F.2d 664, 182 Ct.Cl. 507 (1968). . Blount Bros. Constr. Co. v. United States, supra note 12, 346 F.2d at 972, 171 Ct.Cl. at 496. . Chris Berg, Inc. v. United States, 455 F.2d1037, 1044, 197 Ct.Cl. 503, 514 (1972). . Space Corp. v. United States, supra note 11, 470 F.2d at 540, 200 Ct.Cl. at 8; California-Pacific Util. Co. v. United States, 194 Ct.Cl. 703, 715 (1971). . Ruggiero v. United States, 420 F.2d 709, 190 Ct.Cl. 327 (1970); Bromion, Inc. v. United States, 411 F.2d 1020, 188 Ct.Cl. 31 (1969). . Ruggiero v. United States, supra note 20, 420 F.2d at 713, 190 Ct.Cl. at 335. . The board also has provided an equitable adjustment with respect to one item that" }, { "docid": "1919564", "title": "", "text": "court must undertake when interpreting contracts, another level of analysis is required when the court finds an ambiguity in a contract. When an ambiguity is found within a contract, the court inquires whether that ambiguity is patent. See Fort Vancouver, 860 F.2d at 414. “The doctrine of patent ambiguity is an exception to the general rule of contra proferentem which requires that a contract be construed against the party who wrote it. If a patent ambiguity is found in a contract, the contractor has a duty to inquire of the contracting officer the true meaning of the contract before submitting a bid.” Newsom v. United States, 230 Ct.Cl. 301, 676 F.2d 647, 649 (1982); see also Wickham Contracting Co. v. United States, 212 Ct.Cl. 318, 546 F.2d 395, 398 (1976); S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 546 F.2d 367, 369 (1976); Space Corp. v. United States, 200 Ct.Cl. 1, 470 F.2d 536, 539 (1972). Patent ambiguities are “ ‘so glaring as to raise a duty to inquire’ ” by the contractor. Fort Vancouver, 860 F.2d at 414 (quoting United States v. Turner Constr. Co., 819 F.2d 283, 286 (Fed.Cir.1987)). Actual knowledge of the ambiguity by the contractor is not required. The test is whether the inconsistency is obvious. See Chris Berg, Inc. v. United States, 197 Ct.Cl. 503, 455 F.2d 1037, 1044-15 (1972); see also Maintenance Eng’rs, Inc. v. United States, 21 Cl.Ct. 553, 560 (1990) (“[a] contractor’s failure to comprehend an obvious ambiguity in no way excuses its affirmative duty of inquiry”). The court must place the ambiguity in the contract along a spectrum of ambiguity. See Fort Vancouver, 860 F.2d at 414 (citing Newsom, 676 F.2d at 650). Along the spectrum “there is a grey area between the point ... at which a document requires more exacting language and that at which additional detail will add nothing but worthless surplusage.” Id. at 414. If the ambiguity falls within this grey area it cannot be patently ambiguous and the language of the contract is construed against the drafter. Id. The court must then determine whether the" }, { "docid": "23340081", "title": "", "text": "after hearing oral argument, the decision of the Veterans Administration Board of Contract Appeals is AFFIRMED. George E. Newsom, Contractor, 80-2 BCA ¶ 14,490, VABCA No. 1500. It is not entirely clear whether a drawing of building 85 on page 8 of the drawings would have also described buildings 81 and 82, or whether separate drawings of buildings 81 and 82 were omitted from page 8. We do not believe that there is a difference of legal significance between these two possibilities. Beacon Constr. Co. v. United States, 161 Ct. Cl. 1, 6, 314 F.2d 501, 504 (1963); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 495-96, 346 F.2d 962, 971-72 (1965). See Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 6-7, 314 F.2d at 504; S.O.G. of Arkansas v. United States, 212 Ct. Cl. 125, 131, 546 F.2d 367, 370-71 (1976). HRH Constr. Corp. v. United States, 192 Ct. Cl. 912, 918, 428 F.2d 1267, 1271 (1970); Blount Bros. Constr. Co. v. United States, supra note 3, 171 Ct. Cl. at 481-82, 346 F.2d at 964; 41 U.S.C. § 609(b) (Supp. III 1979). HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 919, 428 F.2d at 1271; L. Rosenman Corp. v. United States, 182 Ct. Cl. 586, 590, 390 F.2d 711, 713 (1968). Mountain Home Contractors v. United States, 192 Ct. Cl. 16, 20-21, 425 F.2d 1260, 1263 (1970). Id., 192 Ct. Cl. at 22, 425 F.2d at 1264. Id., 192 Ct. Cl. at 21, 425 F.2d at 1263, See, e.g., Highway Products, Inc. v. United States, 208 Ct. Cl. 926, 942, 530 F.2d 911, 920 (1976); Space Corp. v. United States, 200 Ct. Cl. 1, 6, 470 F.2d 536, 539 (1972); HRH Constr. Corp. v. United States, supra note 5, 192 Ct. Cl. at 919, 428 F.2d at 1271; Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 6-7, 314 F.2d at 504. If the court finds that a patent ambiguity did not exist, then the reasonableness of the contractor’s interpretation becomes" }, { "docid": "13539070", "title": "", "text": "United States, 163 Ct.Cl. at 6, 323 F.2d at 877. When the problem was obvious or actually perceived by the contractor, the contractor must bring the problem to the government’s attention, prior to contract award, in order to allow the government to correct the problem. Failure to do so precludes the contract from being interpreted in the contractor’s favor, regardless of the reasonableness of the contractor’s interpretation. Interstate Gen. Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434-35 (Fed.Cir. 1992); see Chris Berg, Inc. v. United States, 197 Ct.Cl. 503, 514-15, 455 F.2d 1037, 1044-45 (1972); Beacon Constr. Co. v. United States, 161 Ct.Cl. at 6-7, 314 F.2d at 504. This rule serves two purposes. First, it protects the integrity of government procurement by ensuring that all bidders bid upon the basis of the same terms and specifications, and that no contractor takes advantage of a government drafting error. Second, it promotes the efficient administration of government contracts by encouraging contractors to raise potential problems before the fact, and generally requires less time and effort, thereby reducing the likelihood of extra-cost claims on the project and expensive and time-consuming litigation. Newsom v. United States, 230 Ct.Cl. at 303, 676 F.2d at 649, 651; accord Interwest Constr. v. Brown, 29 F.3d 611, 616 (Fed.Cir.1994); see also S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 130-31, 546 F.2d 367, 370 (1976). “The rule that a contractor, before bidding, should attempt to have the Government resolve a patent ambiguity in the contract’s terms is a major device of preventative hygiene____” S.O.G. of Arkansas v. United States, 212 Ct.Cl. at 131, 546 F.2d at 370-71. Moreover, even if the ambiguity was latent and not perceived by the contractor, the contractor can prevail only if it can establish that at the time it bid the contract it actually interpreted the provision at issue in the manner it asserts. See Fruin-Colnon Corp. v. United States, 912 F.2d 1426, 1430-32 (Fed.Cir.1990); see also Lear Siegler Management Servs. Corp. v. United States, 867 F.2d 600, 603 (Fed.Cir.1989). Should the court find it necessary to examine evidence outside" }, { "docid": "23694367", "title": "", "text": "potential “problem” before it submitted its bid, thereby placing itself under a duty to seek clarification. S.O.G. of Ark. v. United States, 212 Ct.Cl. 125, 546 F.2d 367, 370-71 (1976); Stuyvesant, 11 Cl.Ct. at 861. A contractor “does not bear the burden of interpreting [the] contract [documents] correctly, only of interpreting [them] reasonably.” Salem Eng’g & Constr. Corp. v. United States, 2 Cl.Ct. 803, 807 (1983) (citing Max Drill, Inc. v. United States, 192 Ct.Cl. 608, 427 F.2d 1233,1245 (1970)). Under this theory of recovery the court finds that from the view of a reasonably prudent contractor, the design was patently ambiguous. It is not the actual knowledge of the contractor but rather the obviousness of the discrepancy which imposes the duty to inquire. Chris Berg, Inc. v. United States, 197 Ct.Cl. 503, 455 F.2d 1037, 1045 (1972); J.A. Jones Constr. Co. v. United States, 184 Ct.Cl. 1, 395 F.2d 783, 789-90 (1968). The contractor is bound to inquire into obvious omissions or inconsistencies in the contract documents, see Salem, 2 Cl.Ct. at 807, and a contractor’s interpretation cannot be reasonable “if the ambiguity is obvious.” Jamsar, Inc. v. United States, 194 Ct.Cl. 819, 442 F.2d 930, 934 (1971). Emerald Isle Electric, Inc. v. United States held that “[a] patent ambiguity is generally defined as an ‘obvious omission, inconsistency or discrepancy of significance.’ ” Emerald Isle Elec., Inc. v. United States, 28 Fed.Cl. 71, 73 (1993) (quoting Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963)). Where a patent ambiguity exists in contract specifications, prospective contractors have a duty to clarify the ambiguity prior to bidding on the contract. J.B. Steel, Inc. v. United States, 810 F.2d 1139 (Fed.Cir.1987); S.O.G. 546 F.2d at 370. Plaintiff failed to submit its question in writing, failed to get a written clarification, and never contacted the contracting officer about the discrepancy prior to executing the contract. The purpose of placing the burden of inquiry on prospective contractors is to allow for correction of errors before award and ensure that all prospective contractors bid on the basis of identical specifications." }, { "docid": "23094422", "title": "", "text": "construes it, in the course of bidding or performance, that is the interpretation which will be adopted — unless the parties’ intention is otherwise affirmatively revealed. Peter Kiewit Sons’ Co. v. United States, 109 Ct.Cl. 390, 418 (1947); First-Citizens Bank & Trust Co. v. United States, 76 F.Supp. 250, 266, 110 Ct.Cl. 280, 310 (1948); Western Contracting Corp. v. United States, 144 Ct.Cl. 318, 326 (1958); W. H. Edwards Eng’r Corp. v. United States [161 Ct.Cl. 322, 331-332 (1963)]; Freedman v. United States, 320 F.2d 359, 365 [162 Ct.Cl. 390, 400 (1963)]. This rule is fair both to the drafters and to those who are required to accept or reject the contract as proffered, without haggling. Although the potential contractor may have some duty to inquire about a major patent discrepancy, or obvious omission, or a drastic conflict in provisions (see Consolidated Eng’r Co. v. United States, 98 Ct.Cl. 256, 280 (1943); Ring Constr. Corp. v. United States, 162 F.Supp. 190, 192, 142 Ct.Cl. 731, 734 (1958); Jefferson Constr. Co. v. United States, 151 Ct.Cl. 75, 89-91 (1960)), he is not normally required (absent a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, or possible differences in interpretation. The Government, as the author, has to shoulder the major task of seeing that within the zone of reasonableness the words of the agreement communicate the proper notions — as well as the main risk of a failure to carry that responsibility. If the defendant chafes under the continued application of this check, it can obtain a looser rein by a more meticulous writing of its contracts and especially of the specifications. Or it can shift the burden of ambiguity (to some extent) by inserting provisions in the contract clearly calling upon possible contractors aware of a problem-in-interpretation to seek an explanation before bidding. See Beacon Constr. Co. of Mass. v. United States, 314 F.2d 501, 504 [161 Ct.Cl. 1, 6-7 (1963)]; Guyler v. United States, 314 F.2d 506, 510-511 [161 Ct.Cl. 159, 168 (1963)] (concurring opinion). See, also, Kings Electronics Co. v. United States, Ct.Cl.," }, { "docid": "17685829", "title": "", "text": "even if the contract was in some degree ambiguous on the question of ambient air monitoring, which is not the case, SIPCO’s interpretation was reasonable and will be held against the government. If NASA wanted its air monitors placed within the job site and readings taken in a restricted way, it had the power to order that done. However, in the absence of a formal modification to the contract specifically incorporating such procedures, the data obtained from such monitors would be totally irrelevant to determination of safety issues. Next, the court turns to the issue of the inaccessible areas. Contra proferentum, however, does not always work against the government in the interpretation of ambiguous contract documents. “If a patent ambiguity is found in a contract, the contractor has a duty to inquire of the contracting officer the true meaning of the contract before submitting a bid.” Newsom v. United States, 230 Ct.Cl. 301, 303, 676 F.2d 647, 648 (1982) (citing in footnote Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 6, 314 F.2d 501, 504 (1963); Blount Bros. Constr. Co. v. United States, 171 Ct.Cl. 478, 495-96, 346 F.2d 962, 971-72 (1965)). This duty exists “regardless of the reasonableness of the contractor’s interpretation.” Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985) (citing Newsom v. United States, 676 F.2d 647, 649-50, 230 Ct.Cl. 301 (1982); FFR Building Specialties v. United States, 229 Ct.Cl. 538, 539-40 (1981)). Further, the duty of inquiry is imposed not out of a standard of actual contractor knowledge, but rather the “obviousness of the discrepancy” controls. Hannon Elec. Co. v. United States, 31 Fed.Cl. 135, 145 (quoting Chris Berg, Inc. v. United States, 197 Ct.Cl. 503, 515, 455 F.2d 1037, 1045 (1972)). In examining the legal import of a patent ambiguity, a two step analysis is employed. First, the court asks whether the ambiguity was patent — a patent ambiguity being, of course, an obvious one. However, “[t]his is not a simple yes-no proposition but involves placing the contractual language at a point along a spectrum: Is it so glaring as to raise a" }, { "docid": "9457409", "title": "", "text": "Blount Bros. Constr. Co. v. United States, supra note 12, 346 F.2d at 973, 171 Ct.Cl. at 497. . Whittaker Corp. v. United States, 443 F.2d 1373, 195 Ct.Cl. 161 (1971); LaCrosse Garment Mfg. Co. v. United States, 432 F.2d 1377, 193 Ct.Cl. 168 (1970). . Dittmore-Freimuth Corp. v. United States, 390 F.2d 664, 182 Ct.Cl. 507 (1968). . Blount Bros. Constr. Co. v. United States, supra note 12, 346 F.2d at 972, 171 Ct.Cl. at 496. . Chris Berg, Inc. v. United States, 455 F.2d1037, 1044, 197 Ct.Cl. 503, 514 (1972). . Space Corp. v. United States, supra note 11, 470 F.2d at 540, 200 Ct.Cl. at 8; California-Pacific Util. Co. v. United States, 194 Ct.Cl. 703, 715 (1971). . Ruggiero v. United States, 420 F.2d 709, 190 Ct.Cl. 327 (1970); Bromion, Inc. v. United States, 411 F.2d 1020, 188 Ct.Cl. 31 (1969). . Ruggiero v. United States, supra note 20, 420 F.2d at 713, 190 Ct.Cl. at 335. . The board also has provided an equitable adjustment with respect to one item that the Government should have warned plaintiff about and which it failed to recognize. . Loral Corp. v. United States, 434 F.2d 1328, 193 Ct.Cl. 473 (1970). . Jamsar, Inc. v. United States, 442 F.2d 930, 194 Ct.Cl. 819 (1971)." }, { "docid": "15227759", "title": "", "text": "Ct.Cl. (Dec. 1968); Red Circle Corp. v. United States, 398 F.2d 836, 841-842, 185 Ct.Cl. 1 (July 1968); Centre Mfg. Co., Inc. v. United States, supra, 392 F.2d 229, 232-233, 241, 183 Ct.Cl. 115, 121, 136 (1968); Maxwell Dynamometer Co. v. United States, 386 F.2d 855, 872, 181 Ct.Cl. 607, 634 (1967); Hol-Gar Mfg. Corp. v. United States, 360 F.2d 634, 638, 175 Ct.Cl. 518, 524 (1966); J. D. Hedin Constr. Co., Inc. v. United States, 347 F.2d 235, 246, 171 Ct.Cl. 70, 85-86 (1965). However, we have consistently held that “an experienced contractor cannot rely on government-prepared specifications where, on the basis of the government furnished data, he knows or should have known that the prepared specifications could not produce the desired result for ‘ * * * he has no right to make a useless thing and charge the customer for it.’ R. M. Hollingshead Corp. v. United States, 111 F.Supp. 285, 286, 124 Ct.Cl. 681, 683 (1953).” J. D. Hedin Constr. Co. Inc. v. United States, supra, 347 F.2d at 241, 171 Ct.Cl. at 77; See also, Allied Contractors, Inc. v. United States, 381 F.2d 995, 1000, 180 Ct.Cl. 1057, 1064-1065 (1967); Beacon Constr. Co. of Mass. v. United States, 314 F.2d 501, 504, 161 Ct.Cl. 1, 7 (1963); Ring Constr. Corp. v. United States, 162 F.Supp. 190, 191-192, 142 Ct.Cl. 731, 734 (1958); Anthony M. Meyerstein, Inc. v. United States, 137 F.Supp. 427, 431, 133 Ct.Cl. 694, 700 (1956); DuBois Constr. Corp. v. United States, 98 F.Supp. 590, 594, 120 Ct.Cl. 139, 169 (1951); cf. Leal v. United States, 276 F.2d 378, 383, 149 Ct.Cl. 451, 460 (1960); Ragonese v. United States, 120 F.Supp. 768, 770-771, 128 Ct.Cl. 156, 162 (1954). The rationale of these two lines of cases is that the contractor can rely upon the Government’s representations as to how a desired product should and can be made, unless he ought to know better. In the latter situation, he cannot argue that he has been misled or that he had any right to make his bid on the basis of the specifications which he" }, { "docid": "19961286", "title": "", "text": "work and method of payment did rise to level of patent ambiguity; Newsom v. United States, 230 Ct.Cl. 301, 676 F.2d 647 (1982), where a discrepancy between the specifications and drawings created a patent ambiguity. Therefore, plaintiff was under no duty to inquire about the meaning of SC-30(4)(a) before submitting its bid, as defendant contends. See Newsom, 676 F.2d at 650. Nevertheless, the court is mindful of the policies behind this duty. See id. (citing S.O.G. of Arkansas v. United States, 212 Ct.Cl. 125, 546 F.2d 367, 370-71 (1976); Beacon Constr. Co. v. United States, 161 Ct.Cl. 1, 314 F.2d 501, 504 (1963)). According to the two-step test articulated in Mountain Home Contractors v. United States, only if a court finds that a patent ambiguity is not present does the court then inquire into the reasonableness of the contract interpretation. Mountain Home Contractors v. United States, 192 Ct.Cl. 16, 425 F.2d 1260, 1263 (1970). As the court finds that no patent ambiguity existed here, it now considers whether or not plaintiffs interpretation was reasonable. The court must apply the “zone of reasonableness” test, WPC Enterprises, Inc. v. United States, 163 Ct.Cl. 1, 323 F.2d 874, 877 (1963), and utilize the perspective that the “reasonably intelligent contractor” would employ in the same situation. Zinger Constr. Co. v. United States, 807 F.2d 979, 981 (Fed.Cir.1986). The court finds plaintiff’s interpretation of SC-30(4)(a) to have been reasonable. To the extent that SC-30(4)(a) was ambiguous, it was latently ambiguous. It is well established by the doctrine of contra proferentem that latent ambiguities are to be construed against the drafter. Perry & Wallis, Inc. v. United States, 192 Ct.Cl. 310, 427 F.2d 722, 726 (1970). Therefore, defendant must bear the risk of plaintiff’s having interpreted the clause differently, and must compensate plaintiff accordingly. II. CQC Staff Claim The second issue at bar pertains to Clause SC-30(4)(b), entitled “[CQC] Personnel,” which sets forth the requirements for the contractor’s quality control system staff, as follows: A staff shall be maintained under the direction of the system manager to perform all QC activities. The actual strength of the" }, { "docid": "23340080", "title": "", "text": "this case is closer to Beacon Construction than to Mountain Home. In Beacon Construction:, the specifications stated only that \"weatherstrip shall be provided for all doors,” while the drawings describing the weatherstripping clearly indicated weatherstripping around the windows as well. The conflict between the specifications and the drawings was direct, as in the instant case. And the court was not swayed by the mere fact that the contractor was able to come up with a highly plausible interpretation of the ambiguity. No interpretation could in Beacon Construction, or can in the instant case, eliminate the substantial, obvious conflict between the drawings and the specifications. Finally, we emphasize the negligible time and the ease of effort required to make inquiry of the contracting officer compared with the costs of erroneous interpretation, including protracted litigation. While the court by no means wishes to condone sloppy drafting by the Government, it must recognize the value and importance of a duty of inquiry in achieving fair and expeditious administration of Government contracts. Accordingly, upon consideration of the submissions, and after hearing oral argument, the decision of the Veterans Administration Board of Contract Appeals is AFFIRMED. George E. Newsom, Contractor, 80-2 BCA ¶ 14,490, VABCA No. 1500. It is not entirely clear whether a drawing of building 85 on page 8 of the drawings would have also described buildings 81 and 82, or whether separate drawings of buildings 81 and 82 were omitted from page 8. We do not believe that there is a difference of legal significance between these two possibilities. Beacon Constr. Co. v. United States, 161 Ct. Cl. 1, 6, 314 F.2d 501, 504 (1963); Blount Bros. Constr. Co. v. United States, 171 Ct. Cl. 478, 495-96, 346 F.2d 962, 971-72 (1965). See Beacon Constr. Co. v. United States, supra note 3, 161 Ct. Cl. at 6-7, 314 F.2d at 504; S.O.G. of Arkansas v. United States, 212 Ct. Cl. 125, 131, 546 F.2d 367, 370-71 (1976). HRH Constr. Corp. v. United States, 192 Ct. Cl. 912, 918, 428 F.2d 1267, 1271 (1970); Blount Bros. Constr. Co. v. United States, supra note" } ]

[ { "docid": "4033221", "title": "", "text": "attacks on the plaintiffs’ ability to satisfy the predominance requirement, we focus on one: according to the defendants, Rausser’s damages model is defective. The model purports to quantify the injury in fact to all class members attributable to the defendants’ collusive conduct. But the same methodology also detects injury where none could exist. When applied to shippers who were subject to legacy contracts—ie., those shippers who, during the Class Period, were bound by rates negotiated before any conspiratorial behavior was alleged to have occurred—the damages model yields similar results. If accurate, this critique would shred the plaintiffs’ case for certification. Common questions of fact cannot predominate where there exists no reliable means of proving classwide injury in fact. See Concord Boat Corp. v. Brunswick Corp., 207 F.3d 1039, 1056-57 (8th Cir.2000). When a case turns on individualized proof of injury, separate trials are in order. Rausser contested the legal significance of this criticism of his damages model, but he conceded it measured overcharges to legacy shippers and class members alike. The district court opinion, for its part, regarded Rausser’s damages model as essential to its certification decision, for “neither his common factor model nor his damage model in isolation attempts to prove common injury-in-fact. Rather, the result of the damage model must be viewed as the final step in the body of evidence ... presented to show that injury-in-fact is capable of common proof.” Fuel Surcharge II, 287 F.R.D. at 69 (internal quotation marks omitted). It did not, however, address the defendants’ concern that the damages model yielded false positives with respect to legacy shippers. See id. at 66-70. Together, Rausser’s concession and the district court’s silence are sufficient to render the certification decision questionable under the death-knell rationale for interlocutory review—particularly when combined with Comcast Corp. v. Behrend, — U.S.-, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), which clarified the law of class actions after the district court certified the class. C After the district court’s decision to certify—after the parties even submitted their briefing in this appeal—the Supreme Court decided Comcast Corp. v. Behrend, whose analysis informs the" } ]

[ { "docid": "19639496", "title": "", "text": "supra at 122-23, and therefore these shipments could not have been adjusted to a higher, allegedly conspiratorial fuel surcharge. Dr. Rausser's damages model generates $70 million in overcharges for BNSF intermodal legacy shipments. Class Certification Hr'g Tr. (Sept. 26, 2016) at 197. Yet Dr. Rausser has provided no explanation as to how these shipments were affected by the alleged conspiracy beyond his unpersuasive opinion regarding a change in the economic environment during the class period. Dr. Rausser's legacy decomposition findings simply are unreliable and fail to establish by a preponderance of the evidence that legacy shippers were harmed by the alleged conspiracy. Dr. Rausser faults Dr. Kalt for not \"perform[ing] an economic analysis or consider[ing] any mechanism through which, once in an environment of FSC conspiracy, the legacy shippers could have escaped the effects of that conspiracy.\" Rausser Supp. Rep. at 20. But it is not defendants' burden to show how legacy shippers escaped the alleged conspiracy. Given that Dr. Rausser's damages model generates millions of dollars in overcharges for legacy shippers, it is plaintiffs' burden to show that legacy shippers were affected by the alleged conspiracy. The Court concludes that plaintiffs have failed to meet that burden by a preponderance of the evidence. The Court therefore cannot find that Dr. Rausser's damages model reliably distinguishes overcharges due to the alleged conspiracy from competitively negotiated conduct. This flaw is fatal to plaintiffs' motion for class certification because the Court cannot conclude that Dr. Rausser's damages model is a reliable means for proving class-wide injury. iii. Proposed Class Includes Too Many Uninjured Members The next issue is whether Dr. Rausser's damages model can reliably demonstrate common impact and support plaintiffs' argument that common issues predominate when it is undisputed that the model shows a number of uninjured class members. The Court proceeds by discussing (1) the D.C. Circuit's opinion in this case as it relates to uninjured class members; (2) whether class certification is defeated if there are a de minimis number of uninjured shippers in the class; (3) the relative number of uninjured members in the class; (4) the effect" }, { "docid": "19639267", "title": "", "text": "regarding whether Dr. Rausser's model is a reliable means of proving class-wide impact and damages. f. Legacy Contracts On appeal, defendants argued that Dr. Rausser's damages model yields overcharges for \"legacy contracts, i.e., those shippers who, during the Class Period, were bound by rates negotiated before any conspiratorial behavior was alleged to have occurred.\" In re RailFreight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. Defendants initially sought to test Dr. Rausser's damages model on legacy contracts because Dr. Rausser had \"identified a set of legacy shipments in his original class certification report, purportedly to ensure that 'unaffected' shippers were not included in the class.\" Defs. Supp. Opp. at 46 (citing Rausser Class Rep. at 120-21). Shippers with only legacy contracts are not members of the class; they have been excluded from the class definition proposed by plaintiffs and accepted by the Court. See infra at 92-93. The legacy shippers issue arose in this litigation because defendants have asserted that legacy shippers are a \"clean\" group of shippers-who were unaffected by the alleged conspiracy-and therefore can be used to test whether Dr. Rausser's damages model shows overcharges for only those shippers harmed by the conspiracy. See Defs. Supp. Opp. at 46-48. Defendants' first class certification expert, Dr. Robert D. Willig, tested the damages model on legacy shipments and found overcharges, or \"false positives,\" a critique which defendants presented on appeal. See In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. The court of appeals in its opinion focused on \"defendants' concern that [Dr. Rausser's] damages model yielded false positives with respect to legacy shippers\" and referenced Dr. Rausser's \"concession\" that his damages model measured overcharges to both legacy shippers and class members. In re Rail Freight Fuel Surcharge Antitrust Litig.-MDLNo. 1869, 725 F.3d at 253. The D.C. Circuit remanded the case for this Court to consider, in light of the decision in Comcast, defendants' argument that Dr. Rausser's damages model is prone to false positives and therefore \"detects injury where none could exist.\" Id. at 252. Although the court of appeals noted that" }, { "docid": "19639534", "title": "", "text": "Rausser Merits Rep. at 171. The result of those calculations was a total damages Figure attributable to each of the four defendants in each year during the class period (2003 to 2008). Rausser Merits Reply at 250-51 & Table 105. Dr. Rausser calculates the total amount of damages to be $7.9 billion. Id. Based on the Court's conclusions regarding whether Dr. Rausser's damages model is reliable in helping to prove common impact, there are three key issues that also bear on whether Dr. Rausser's damages model is a reliable means of assessing class-wide damages. First, the Court determined that Dr. Rausser's damages model shows hundreds of millions of dollars in overcharges for intermodal shippers and that those overcharges are unsupported by plaintiffs' theory of liability. See supra at 122-27. As the Court noted, plaintiffs have offered no reliable evidence to explain how intermodal shippers experienced hundreds of millions of dollars in overcharges, when defendants never changed the intermodal fuel surcharge formulas. See supra at 125-26. Plaintiffs' only response-that intermodal shippers suffered over $800 million in overcharges from defendants' aggressive enforcement of fuel surcharges-is \"completely untethered to the evidence.\" Class Certification Hr'g Tr. (Sept. 26, 2016) at 192. Second, Dr. Rausser's damages model shows overcharges for legacy shippers. The damages model shows an average weekly overcharge of 9.7% for legacy shipments, nearly identical to the average weekly overcharge of 9.8% for class shipments. Kalt Class Rep. ¶ 6. Plaintiffs assert that the alleged conspiracy \"impacted all contracts, including legacy contracts.\" Pls. Supp. Mem. at 27; see also supra at 126-30. On remand, Dr. Rausser states that all legacy shippers were harmed by the alleged conspiracy because (1) a majority of the legacy shippers were not \"true\" legacies because those shippers were not bound by rates negotiated before the start of the alleged conspiracy, see Rausser Supp. Rep. at 6, and (2) the change in economic environment during the class period prevented legacy shippers from renegotiating their contracts as fuel prices (and fuel surcharges) rose. Id. at 5, 7-11. The Court already has found, however, that Dr. Rausser's expert opinion regarding legacy" }, { "docid": "19639266", "title": "", "text": "Court has found Dr. Rausser's [damages] model reliable enough for Daubert purposes does not mean that Defendants cannot argue that the curious results uncovered [by their experts] make the regression model unconvincing for purposes for class certification.\" Id. The Court will fully explore defendants' criticisms regarding the damages model's alleged propensity for false positives, see infra at 118-122, 126-32, but that is an examination appropriately for class certification, not for Daubert. Dr. Rausser's damages model was the focus of the D.C. Circuit's decision under Rule 23, and it is at the heart of the parties' arguments on remand. But the Court finds no reasons to exclude Dr. Rausser's damages model as irrelevant or unreliable under Daubert. Dr. Rausser's model incorporates millions of data points, provided by the defendants and the STB. In constructing his damages model, Dr. Rausser used methods widely accepted in antitrust cases. The Court therefore concludes that Dr. Rausser's damages model is admissible under Daubert and Rule 702. The Court, however, will conduct a rigorous analysis, as instructed by the D.C. Circuit, regarding whether Dr. Rausser's model is a reliable means of proving class-wide impact and damages. f. Legacy Contracts On appeal, defendants argued that Dr. Rausser's damages model yields overcharges for \"legacy contracts, i.e., those shippers who, during the Class Period, were bound by rates negotiated before any conspiratorial behavior was alleged to have occurred.\" In re RailFreight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. Defendants initially sought to test Dr. Rausser's damages model on legacy contracts because Dr. Rausser had \"identified a set of legacy shipments in his original class certification report, purportedly to ensure that 'unaffected' shippers were not included in the class.\" Defs. Supp. Opp. at 46 (citing Rausser Class Rep. at 120-21). Shippers with only legacy contracts are not members of the class; they have been excluded from the class definition proposed by plaintiffs and accepted by the Court. See infra at 92-93. The legacy shippers issue arose in this litigation because defendants have asserted that legacy shippers are a \"clean\" group of shippers-who were unaffected by the alleged" }, { "docid": "19639234", "title": "", "text": "the fact that the expert lied about whether his methodology had been subjected to peer review, or intentionally understated the test's known rates of error, is a different matter entirely. 233 F.3d at 751 n.8. Defendants have asserted that Dr. Rausser and his OnPoint Analytics associate, Dr. Macartney, provided Cascade with information about the potential damages claims in this case that is inconsistent with the damages calculations he has offered in his reports. See Class Certification Hr'g Tr. (Sept. 30, 2016) at 1174-75. Defendants assert that Dr. Rausser's damages model provides for a weekly average overcharge for every shipper, regardless of their differences, even though he told Cascade that \"the claims filing process in [this] case was going to be complex ... [and] the estimated overcharge will vary by time and may vary by shipper category.\" Id. at 1175. Under the Third Circuit's approach, this evidence goes to the weight to be given to Dr. Rausser's expert opinion, not to its admissibility under Rule 702. See Elcock v.Kmart Corp., 233 F.3d at 751 n.8. There is no allegation that Dr. Rausser lied about his methodologies or his work product in such a way that the Court would need to exclude Dr. Rausser's opinion for lack of reliability under Rule 702. Dr. Rausser testified that he did not \"exercise sound judgment\" in his involvement with Cascade. Class Certification Hr'g Tr. (Sept. 27, 2016) at 338. Despite his testimony that he saw no problem with his arrangement with Cascade, see id., Dr. Rausser was keenly aware that his consulting arrangement could appear to be a conflict of interest. In an e-mail to John Chilcott, a co-founder of Cascade, Dr. Rausser stated that Cascade's marketing department needed to stop using his name and likeness in \"marketing materials for use in the Rail Freight case ... so as to avoid any conflict with [his] role as an expert witness.\" Defs. Ex. 1, E-mail from Dr. Gordon Rausser, to John Chilcott (May 21, 2013, 6:02 PM), at OPA_GR_SUB_00881. The Court agrees that, at the very least, Dr. Rausser did not exercise sound judgment. Dr. Rausser" }, { "docid": "19639405", "title": "", "text": "also discusses defendants' arguments concerning causation and coverage and Dr. Rausser's failure to create a coverage model. In Part B, the Court discusses four specific challenges made by defendants to Dr. Rausser's regression models and finds them wanting: (1) Dr. Rausser's common factors model omits key variables and does not demonstrate common impact; (2) Dr. Rausser's use of a constant fuel coefficient in his damages model makes the model unreliable; (3) Dr. Kalt's structural break analyses undermine Dr. Rausser's damages model because the analyses show that Dr. Rausser's damages model generates structural breaks and overcharges throughout the pre-class and class periods; and (4) Dr. Rausser's damages model is prone to certain \"false positives\" other than the one highlighted by the court of appeals (relating to legacy shippers) and therefore detects injury where none could exist. Finally, in Part C, the Court discusses three additional criticisms put forward by defendants which the Court finds persuasive and which separately or together undermine the reliability of Dr. Rausser's damages model, making it impossible for plaintiffs to satisfy the predominance requirement of Rule 23(b)(3) : (1) a large portion of the class traffic reflected in Dr. Rausser's damages model was intermodal traffic that was subject to competitively negotiated formulas established during the class period and which never changed; (2) Dr. Rausser's damages model finds unexplainable overcharges with respect to legacy shippers; and (3) there are too many uninjured shippers in the class who cannot be identified or sufficiently explained by prediction error to satisfy the \"all or virtually all\" standard for predominance under established case law. a. Plaintiffs' Record Evidence of Class-wide Impact i. Documentary Evidence In its previous decision certifying the class, the Court found that the fuel surcharge programs applied before the class period were \"nothing like the widespread and uniform application of standardized fuel surcharges during the class period.\" Rail Freight III, 287 F.R.D. at 48. Specifically, the Court found that (1) the fuel surcharges applied during the Class Period were more aggressive and uniformly applied across virtually all shippers, id. at 49, (2) \"each defendant enforced strict policies ensuring across-the-board" }, { "docid": "19639533", "title": "", "text": "all-in rates,... and estimates how much those all-in rates increased as a result of Defendants' [allegedly] conspiratorial conduct.\" Rausser Merits Rep. at 171. \"The percentage overcharge due to the alleged conspiracy can be calculated using the regression model to compare freight rates in the Class Period to those in the pre-Class Period, while using the Defendants' transaction data and publicly available data to account for the other predominating common economic forces that determine prices.\" Id. at 164. Because the fuel surcharges were linked to fuel prices, \"which vary each week, the conspiratorial overcharge is expected to differ\" from week to week. Id. at 171. Using 100% of defendants' transaction data, Dr. Rausser has estimated the overcharge for each week of the class period. Id. The average of those weekly overcharges is 9.8%. See Rausser Supp. Reply at 47; Class Certification Hr'g Tr. (Sept. 27, 2016) at 377. Dr. Rausser computed \"[c]lass-wide damages ... by applying each week's overcharge percentage to the gross revenue paid ... to the Defendants by Class members in that same week.\" Rausser Merits Rep. at 171. The result of those calculations was a total damages Figure attributable to each of the four defendants in each year during the class period (2003 to 2008). Rausser Merits Reply at 250-51 & Table 105. Dr. Rausser calculates the total amount of damages to be $7.9 billion. Id. Based on the Court's conclusions regarding whether Dr. Rausser's damages model is reliable in helping to prove common impact, there are three key issues that also bear on whether Dr. Rausser's damages model is a reliable means of assessing class-wide damages. First, the Court determined that Dr. Rausser's damages model shows hundreds of millions of dollars in overcharges for intermodal shippers and that those overcharges are unsupported by plaintiffs' theory of liability. See supra at 122-27. As the Court noted, plaintiffs have offered no reliable evidence to explain how intermodal shippers experienced hundreds of millions of dollars in overcharges, when defendants never changed the intermodal fuel surcharge formulas. See supra at 125-26. Plaintiffs' only response-that intermodal shippers suffered over $800 million in" }, { "docid": "19639458", "title": "", "text": "Positives: Whether Dr. Rausser's Model Includes Impermissible False Positives The court of appeals directed this Court to consider on remand defendants' argument that Dr. Rausser's damages model is prone to false positives and \"detects injury where none could exist.\" In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. Defendants argued to the court of appeals that the damages model should not find overcharges for legacy shippers, this is, \"shippers who, during the Class Period, were bound by rates negotiated before any conspiratorial behavior was alleged to have occurred.\" Id. Defendants argued that if a shipment during the class period moved under a contract with a competitively set rate, then any overcharges shown for that shipper are a false positive because the damages model cannot distinguish between the effect of the alleged conspiracy and competitively negotiated conduct. As discussed infra at 126-31, the Court is persuaded by the reports and testimony of defendants' new experts on remand that Dr. Rausser's damages model finds unexplainable overcharges with respect to legacy shippers. In contrast to the narrow issue defendants presented to the court of appeals, however, on remand, defendants have taken a \"whack-a-mole\" approach to the false positives question and present numerous additional arguments the court of appeals was never asked to consider. Class Certification Hr'g Tr. (Sept. 26, 2016) at 209. Dr. Kalt suggests three additional discrete examples of false positives where Dr. Rausser's damages model calculates overcharges where defendants allege that there should be none: (1) when one sets all-in rates equal to defendants' variable costs; (2) when one sets each defendant's fuel surcharge rate on local carload traffic during the class period equal to its pre-class period fuel surcharge rate; and (3) when Dr. Rausser's model calculates overcharges that exceed the total fuel surcharge on a given shipment. The Court will address each of these false positives arguments in turn. 1. Rates Equal to Variable Costs. Dr. Kalt argues that Dr. Rausser's damages model should not find overcharges when shippers pay rates that are equal to defendants' variable shipping costs because, in such a counterfactual" }, { "docid": "19639535", "title": "", "text": "overcharges from defendants' aggressive enforcement of fuel surcharges-is \"completely untethered to the evidence.\" Class Certification Hr'g Tr. (Sept. 26, 2016) at 192. Second, Dr. Rausser's damages model shows overcharges for legacy shippers. The damages model shows an average weekly overcharge of 9.7% for legacy shipments, nearly identical to the average weekly overcharge of 9.8% for class shipments. Kalt Class Rep. ¶ 6. Plaintiffs assert that the alleged conspiracy \"impacted all contracts, including legacy contracts.\" Pls. Supp. Mem. at 27; see also supra at 126-30. On remand, Dr. Rausser states that all legacy shippers were harmed by the alleged conspiracy because (1) a majority of the legacy shippers were not \"true\" legacies because those shippers were not bound by rates negotiated before the start of the alleged conspiracy, see Rausser Supp. Rep. at 6, and (2) the change in economic environment during the class period prevented legacy shippers from renegotiating their contracts as fuel prices (and fuel surcharges) rose. Id. at 5, 7-11. The Court already has found, however, that Dr. Rausser's expert opinion regarding legacy shippers simply is insufficient to establish that all or a substantial number of legacy shippers also were harmed by the alleged conspiracy. See supra at 126-32. The Court therefore concluded that plaintiffs have failed to establish that Dr. Rausser's damages model reliably shows overcharges for legacy shippers. See supra at 131-32. With respect to intermodal shippers, the Court cannot be certain that the overcharges for carload shippers are accurate in the face of the massive overcharges Dr. Rausser's damages model finds for intermodal shippers that are unsupported by the evidence. With respect to legacy shippers, if the damages model also estimates overcharges for legacy shippers who were not harmed by the alleged conspiracy, then the Court cannot be certain that the overcharges that the damages model calculates for class members are accurate. See In reRail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 254. The problems associated with overcharges for intermodal and legacy shippers-separately or together-show that Dr. Rausser's damages model is unreliable. The Court therefore concludes that plaintiffs have failed to establish" }, { "docid": "19639481", "title": "", "text": "See, e.g., Pls. Supp. Reply at 8-10; Class Certification Hr'g Tr. (Sept. 26, 2016) at 55; see also supra at 102-07. ii. Legacy Shippers: Dr. Rausser's Damages Model Finds Unexplainable Overcharges The Court now addresses defendants' argument that Dr. Rausser's damages model also generates overcharges for legacy shippers-those shippers who were bound by rates negotiated before the alleged conspiracy. Legacy shippers are not members of the plaintiff class, but defendants have attempted to run Dr. Rausser's damages model on legacy shipper transaction data to demonstrate that the model shows injury where there could be none, thereby undermining its reliability. See Defs. Supp. Opp. at 16-17. Dr. Kalt states that Dr. Rausser's damages model yields a 9.7% average weekly overcharge for legacy shipments, almost identical to the 9.8% average weekly overcharge for class shipments. Kalt Class Rep. ¶¶ 6, 35. According to defendants, because Dr. Rausser's damages model finds overcharges for shippers who were bound by rates negotiated before the start of the alleged conspiracy. Dr. Rausser's model cannot distinguish conspiratorial from non-conspiratorial conduct and therefore is unreliable. See Defs. Supp. Opp. at 5; Class Certification Hr'g Tr. (Sept. 26, 2016) at 147. On remand, plaintiffs offer the expert opinion of Dr. Rausser to show that legacy shippers were also harmed by the alleged conspiracy during the class period, and therefore that his damages model reliably shows overcharges for legacy shipments. See Pls. Supp. Mem. at 13-38; Rausser Supp. Rep. at 6-23, 35-75. Plaintiffs presented this argument to the court of appeals-albeit without Dr. Rausser's remand legacy contracts analysis. The court of appeals left it to this Court to consider the argument in the first instance, but noted that the claim \"runs directly counter\" to this Court's \"factual finding that 'the fuel surcharge programs applied before the class period were nothing like the widespread and uniform application of standardized fuel surcharges during the class period.' \" In re Rail Freight Fuel Surcharge Antitrust Litig.-MDLNo. 1869, 725 F.3d at 254 (quoting Rail Freight III, 287 F.R.D. at 48 ). In response, Dr. Rausser offers two key opinions for why legacy shippers were" }, { "docid": "19639181", "title": "", "text": "LEGAL STANDARD FOR CLASS CERTIFICATION UNDER RULE 23 ...87 A. Requirements of Rule 23 of the Federal Rules of Civil Procedure ...88 B. Rigorous Analysis Post- Comcast ...90 II. RULE 23(A) FINDINGS AND CONCLUSIONS ...92 A. Two Implied Requirements ...92 1. Class Definition....92 2. Named Representatives Within the Putative Class....93 B. Four Express Requirements ...93 1. Numerosity....93 2. Commonality ...93 3. Typicality....94 4. Adequacy of Representation ...94 PART FOUR: RULE 23(B) FINDINGS AND CONCLUSIONS ...95 I. PREDOMINANCE...95 A. Violation of Antitrust Law ...96 B. Impact ...96 1. Plaintiffs' Theory of Liability....97 2. Antitrust Injury....99 3. Injury-in-Fact....101 a. Plaintiffs' Record Evidence of Class-wide Impact ...103 i. Documentary Evidence....103 ii. Coverage ...105 b. Defendants' Challenges to Dr. Rausser's Common Factors and Damages Models ...107 i. Dr. Rausser's Common Factors Model ...108 ii. Constant Fuel Coefficient: Whether Dr. Rausser's Damages Model is \"Rigged\" to Find Overcharges ...109 iii. Structural Break Analyses: Whether Dr. Rausser's Damages Model Shows Structural Breaks and Overcharges Throughout the Pre-Class and Class Periods....115 iv. False Positives: Whether Dr. Rausser's Model Includes Impermissible False Positives ...119 c. Issues Precluding a Finding of Predominance....122 i. Intermodal Shippers: Class Traffic Subject to Competitively Negotiated Formulas....122 ii. Legacy Shippers: Dr. Rausser's Damages Model Finds Unexplainable Overcharges....126 iii. Proposed Class Includes Too Many Uninjured Members ...132 C . Damages ...141 II. SUPERIORITY ...144 CONCLUSION ...145 PART ONE: INTRODUCTION AND BACKGROUND I. INTRODUCTION This matter is again before the Court on a motion of the direct purchaser plaintiffs for class certification under Rule 23 of the Federal Rules of Civil Procedure. The Court previously certified the class in 2012. See In re Rail Freight Fuel Surcharge Antitrust Litig., 287 F.R.D. 1, 74 (D.D.C. 2012) (\" Rail Freight III\"). On appeal, the United States Court of Appeals for the District of Columbia Circuit vacated this Court's prior decision and remanded for further consideration in light of intervening Supreme Court precedent in Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). In re Rail Freight Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d 244, 255 (D.C. Cir. 2013). After remand, this Court permitted" }, { "docid": "19639532", "title": "", "text": "also Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir. 2013) (\"[T]he presence of individualized damages cannot, by itself, defeat class certification under Rule 23(b)(3).\"); 7AA CHARLES ALAN WRIGHT , ARTHUR R. MILLER & MARY KAY KANE , FEDERAL PRACTICE AND PROCEDURE § 1781 (3d ed. 2017) (\"[I]t uniformly has been held that differences among the members as to the amount of damages incurred does not mean that a class action would be inappropriate.\"). At this stage, therefore, the Court must determine whether plaintiffs have shown by a preponderance of the evidence that there is a reliable means of proving class-wide damages. See In re Processed Egg Prods. Antitrust Litig., 312 F.R.D. at 202-03. Plaintiffs rely on Dr. Rausser's damages model first to show that class-wide damages can be estimated. See Pls. Supp. Mem. at 64, Pls. Supp. Reply at 40. They also maintain that the same model could later be used to calculate and apportion class-wide damages among individual class members. Pls. Supp. Mem. at 64. Dr. Rausser's damages methodology \"pertains to all-in rates,... and estimates how much those all-in rates increased as a result of Defendants' [allegedly] conspiratorial conduct.\" Rausser Merits Rep. at 171. \"The percentage overcharge due to the alleged conspiracy can be calculated using the regression model to compare freight rates in the Class Period to those in the pre-Class Period, while using the Defendants' transaction data and publicly available data to account for the other predominating common economic forces that determine prices.\" Id. at 164. Because the fuel surcharges were linked to fuel prices, \"which vary each week, the conspiratorial overcharge is expected to differ\" from week to week. Id. at 171. Using 100% of defendants' transaction data, Dr. Rausser has estimated the overcharge for each week of the class period. Id. The average of those weekly overcharges is 9.8%. See Rausser Supp. Reply at 47; Class Certification Hr'g Tr. (Sept. 27, 2016) at 377. Dr. Rausser computed \"[c]lass-wide damages ... by applying each week's overcharge percentage to the gross revenue paid ... to the Defendants by Class members in that same week.\"" }, { "docid": "19639268", "title": "", "text": "conspiracy-and therefore can be used to test whether Dr. Rausser's damages model shows overcharges for only those shippers harmed by the conspiracy. See Defs. Supp. Opp. at 46-48. Defendants' first class certification expert, Dr. Robert D. Willig, tested the damages model on legacy shipments and found overcharges, or \"false positives,\" a critique which defendants presented on appeal. See In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. The court of appeals in its opinion focused on \"defendants' concern that [Dr. Rausser's] damages model yielded false positives with respect to legacy shippers\" and referenced Dr. Rausser's \"concession\" that his damages model measured overcharges to both legacy shippers and class members. In re Rail Freight Fuel Surcharge Antitrust Litig.-MDLNo. 1869, 725 F.3d at 253. The D.C. Circuit remanded the case for this Court to consider, in light of the decision in Comcast, defendants' argument that Dr. Rausser's damages model is prone to false positives and therefore \"detects injury where none could exist.\" Id. at 252. Although the court of appeals noted that Dr. Rausser conceded that his damages model measures \"overcharges to legacy shippers and class members alike,\" id. at 253, Dr. Rausser on remand maintains that it has always been his opinion that legacy shippers would have been harmed by the alleged conspiracy, regardless of whether they are included in the class definition chosen by plaintiffs' counsel. Rausser Supp. Rep. at 20. With respect to legacy shipments, Dr. Rausser states that defendants' false positives argument is based on a \"false premise\" that \"the alleged conspiracy could not have affected shipments under legacy contracts, because the FSC formulas embedded in those contracts were agreed upon between railroad and shipper before the alleged conspiracy was [underway].\" Rausser Supp. Rep. at 4. There are two bases from which Dr. Rausser concludes that legacy shipments during the class period were harmed: (1) there was a change in the economic environment during the class period and all shipments, including legacy shipments, were affected by the alleged conspiracy, id. at 5, and (2) his analysis of legacy contracts-his so-called \"legacy decomposition\"-indicates that" }, { "docid": "19639566", "title": "", "text": "available rate of the four defendants. See supra at 125-26. Dr. Rausser does not label these last two categories as \"Category 3\" and \"Category 4.\" The Court will use these references for its own discussion. Defendants assert that the overcharges for legacy shippers are caused, at least in part, by the constant fuel coefficient in Dr. Rausser's damages model. See Class Certification Hr'g Tr. (Sept. 27, 2016) at 222. Although the Court concluded that a constant fuel coefficient is more reliable than a variable fuel coefficient based on the opinions and exercises submitted by the experts in this case, see supra at 109-15, the Court need not determine the exact cause of the overcharges for legacy shippers. It is enough to conclude that Dr. Rausser's model shows unexplainable overcharges for legacy shippers. In addition to Dr. Rausser's latest report, a practical basis for this finding is that Dr. Kalt adopted Dr. Rausser's 16,065 figure by using it as the denominator for his calculation of the percentage of uninjured class members. Kalt Class Rep. ¶ 73 n.103 (\"For the purposes of testing [Dr.] Rausser's results and claims ... I have accepted his [16,000] shipper designations.\"). To use any figure other than 16,065 would render those calculations meaningless. Dust Pro, Inc., a named plaintiff, is one of the class members with only negative overcharges across all of their shipments. See Rausser Supp. Reply, Table 22. The Court previously designated Dust Pro, Inc. as a class representative. Rail Freight III, 287 F.R.D. at 74. Whether Dust Pro, Inc. should remain a named plaintiff that represents the class in this case is outside the scope of the present motion for class certification. While not doctrinally significant, the Court also notes that permitting some uninjured class members at the class certification stage is consistent with the reality of having to use a regression model to prove class-wide injury. Regression analysis is always subject to prediction error, meaning that \"no matter how much data we have, we can never predict perfectly.\" See GREENE, supra, at 121; see also Kalt Class Sur-Reply ¶ 48; Class Certification Hr'g" }, { "docid": "19639536", "title": "", "text": "shippers simply is insufficient to establish that all or a substantial number of legacy shippers also were harmed by the alleged conspiracy. See supra at 126-32. The Court therefore concluded that plaintiffs have failed to establish that Dr. Rausser's damages model reliably shows overcharges for legacy shippers. See supra at 131-32. With respect to intermodal shippers, the Court cannot be certain that the overcharges for carload shippers are accurate in the face of the massive overcharges Dr. Rausser's damages model finds for intermodal shippers that are unsupported by the evidence. With respect to legacy shippers, if the damages model also estimates overcharges for legacy shippers who were not harmed by the alleged conspiracy, then the Court cannot be certain that the overcharges that the damages model calculates for class members are accurate. See In reRail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 254. The problems associated with overcharges for intermodal and legacy shippers-separately or together-show that Dr. Rausser's damages model is unreliable. The Court therefore concludes that plaintiffs have failed to establish that Dr. Rausser's damages model is a reliable means of assessing class-wide damages. This is fatal to plaintiffs' claim of predominance. See id. at 253. Lastly, with respect to common impact, the Court has concluded that individual issues would predominate in determining whether the 2,037 putative class members for whom Dr. Rausser's damages model shows no injury were in fact injured. Just as plaintiffs have not offered any common evidence to determine which of these over 2,000 shippers is in fact injured, see supra at 140-41, they have not shown which of these shippers could prove damages at trial without requiring the Court or the jury to engage in individualized inquiries. The Court therefore concludes that individual damages determinations for these class members would predominate over common issues. See Kleen Prods. LLC v. Int'l Paper Co., 831 F.3d at 929. II. SUPERIORITY The second requirement of Rule 23(b)(3) is superiority: a court must find \"that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.\" FED. R. CIV. P." }, { "docid": "19639480", "title": "", "text": "fuel surcharges for carload shipments were not more aggressive than the pre-class period fuel surcharges, even though the carload fuel surcharge formulas did change. See Kalt Class Rep. ¶¶ 96-98 & Figure 17; Defs. Supp. Opp. at 27-32. This argument is based on Dr. Kalt's so-called \"earning power\" analysis. Because the Court has concluded that neither the documentary record nor Dr. Rausser's damages model supports plaintiffs' position that intermodal shippers suffered overcharges in the amount of $872 million-or in any quantifiable amount-and because Dr. Rausser's models include both intermodal and carload shipments, it need not discuss defendants' earning power argument. Suffice it to say that the Court agrees with plaintiffs that Dr. Kalt's earning power critique is not persuasive. It looks at carload formulas in isolation without regard to the more aggressive application and enforcement of fuel surcharges on carload shipments during the alleged conspiracy. It also is inconsistent with the documentary record and the statements of defendants' own executives that the new carload fuel surcharge formulas were more aggressive and yielded substantially more revenue. See, e.g., Pls. Supp. Reply at 8-10; Class Certification Hr'g Tr. (Sept. 26, 2016) at 55; see also supra at 102-07. ii. Legacy Shippers: Dr. Rausser's Damages Model Finds Unexplainable Overcharges The Court now addresses defendants' argument that Dr. Rausser's damages model also generates overcharges for legacy shippers-those shippers who were bound by rates negotiated before the alleged conspiracy. Legacy shippers are not members of the plaintiff class, but defendants have attempted to run Dr. Rausser's damages model on legacy shipper transaction data to demonstrate that the model shows injury where there could be none, thereby undermining its reliability. See Defs. Supp. Opp. at 16-17. Dr. Kalt states that Dr. Rausser's damages model yields a 9.7% average weekly overcharge for legacy shipments, almost identical to the 9.8% average weekly overcharge for class shipments. Kalt Class Rep. ¶¶ 6, 35. According to defendants, because Dr. Rausser's damages model finds overcharges for shippers who were bound by rates negotiated before the start of the alleged conspiracy. Dr. Rausser's model cannot distinguish conspiratorial from non-conspiratorial conduct and therefore" }, { "docid": "19639567", "title": "", "text": "n.103 (\"For the purposes of testing [Dr.] Rausser's results and claims ... I have accepted his [16,000] shipper designations.\"). To use any figure other than 16,065 would render those calculations meaningless. Dust Pro, Inc., a named plaintiff, is one of the class members with only negative overcharges across all of their shipments. See Rausser Supp. Reply, Table 22. The Court previously designated Dust Pro, Inc. as a class representative. Rail Freight III, 287 F.R.D. at 74. Whether Dust Pro, Inc. should remain a named plaintiff that represents the class in this case is outside the scope of the present motion for class certification. While not doctrinally significant, the Court also notes that permitting some uninjured class members at the class certification stage is consistent with the reality of having to use a regression model to prove class-wide injury. Regression analysis is always subject to prediction error, meaning that \"no matter how much data we have, we can never predict perfectly.\" See GREENE, supra, at 121; see also Kalt Class Sur-Reply ¶ 48; Class Certification Hr'g Tr. (Sept. 29, 2016) at 864 (Dr. Kalt testified that \"no model fits perfectly; it's going to have prediction error\"). In other words, even if, as here, a regression includes all transaction data such that it reflects a complete picture of the population it intends to analyze-i.e., no sampling error-there will always be the chance for outlier results. GREENE, supra, at 121. Dr. Rausser agrees that there could be a 2.5% \"margin of error,\" and that this leads to prediction error, Rausser Supp. Reply at 108, 125, but he says Dr. Kalt draws \"unreliable conclusions\" regarding the reliability of Dr. Rausser's damages model and whether shippers suffered a common impact. Id. at 125. This average weekly overcharge of 9.8% is based on Dr. Rausser's most recent damages model. The average weekly overcharge has changed as Dr. Rausser has updated his damages model. In his Merits Report, Dr. Rausser calculated an average weekly overcharge of 13.6%. Rausser Merits Rep. at 171." }, { "docid": "19639459", "title": "", "text": "contrast to the narrow issue defendants presented to the court of appeals, however, on remand, defendants have taken a \"whack-a-mole\" approach to the false positives question and present numerous additional arguments the court of appeals was never asked to consider. Class Certification Hr'g Tr. (Sept. 26, 2016) at 209. Dr. Kalt suggests three additional discrete examples of false positives where Dr. Rausser's damages model calculates overcharges where defendants allege that there should be none: (1) when one sets all-in rates equal to defendants' variable costs; (2) when one sets each defendant's fuel surcharge rate on local carload traffic during the class period equal to its pre-class period fuel surcharge rate; and (3) when Dr. Rausser's model calculates overcharges that exceed the total fuel surcharge on a given shipment. The Court will address each of these false positives arguments in turn. 1. Rates Equal to Variable Costs. Dr. Kalt argues that Dr. Rausser's damages model should not find overcharges when shippers pay rates that are equal to defendants' variable shipping costs because, in such a counterfactual environment, defendants would merely recover their shipping costs and not profit from any alleged conspiracy. Kalt Class Rep. ¶¶ 61-64. Dr. Kalt ran Dr. Rausser's model by setting freight rates equal to variable costs and found \"positive weekly overcharges for more than 33% of shipments\" and an average class-wide weekly overcharge of -0.6%. Id. ¶ 63 & Figure 11. Dr. Rausser offers two main responses. First, Dr. Rausser contends that Dr. Kalt's exercise \"doesn't make any sense because it has a dependent variable cost, which is not the purpose for which [he] designed\" the damages model. Class Certification Hr'g Tr. (Sept. 28, 2016) at 513. Dr. Rausser explains that his damages model is a model of prices, not costs, and suggests that Dr. Kalt's \"substitution of prices with variable costs as the dependent variable\" causes the positive overcharge estimates that Dr. Kalt finds but in no way undermines Dr. Rausser's model. Id. at 516. Second, Dr. Rausser argues that Dr. Kalt improperly excluded the STB intermodal data from his exercise and, that when Dr. Rausser" }, { "docid": "19639457", "title": "", "text": "literature recognizes that to perform a meaningful benchmark comparison ... requires sufficient data in both time periods.\"); Class Certification Hr'g Tr. (Sept. 28, 2016) at 605-06. Recall that Dr. Rausser's model was run on approximately 50 million transactions in the pre-class period. See Class Certification Hr'g Tr. (Sept. 27, 2016) at 368. Dr. Rausser said that because Dr. Kalt uses too little data, his structural break analysis produces unreliable results. Rausser Supp. Reply at 94; see In re High-Tech Emp. Antitrust Litig., 289 F.R.D. 555, 580 (N.D. Cal. 2013) (\"[I]n altering the benchmark periods, Defendants have reduced the total amount of data available regarding the non-conduct periods .... [L]ess data may result in less accurate results.\"). Regardless of the precise cause for Dr. Kalt's finding negative structural breaks, the Court agrees with plaintiffs' experts that the composition of Dr. Kalt's pre-class structural break analysis and his results indicate that his exercise is unreliable. The Court therefore concludes that Dr. Kalt's structural break analyses do not undermine the reliability of Dr. Rausser's damages model. iv. False Positives: Whether Dr. Rausser's Model Includes Impermissible False Positives The court of appeals directed this Court to consider on remand defendants' argument that Dr. Rausser's damages model is prone to false positives and \"detects injury where none could exist.\" In re Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 252. Defendants argued to the court of appeals that the damages model should not find overcharges for legacy shippers, this is, \"shippers who, during the Class Period, were bound by rates negotiated before any conspiratorial behavior was alleged to have occurred.\" Id. Defendants argued that if a shipment during the class period moved under a contract with a competitively set rate, then any overcharges shown for that shipper are a false positive because the damages model cannot distinguish between the effect of the alleged conspiracy and competitively negotiated conduct. As discussed infra at 126-31, the Court is persuaded by the reports and testimony of defendants' new experts on remand that Dr. Rausser's damages model finds unexplainable overcharges with respect to legacy shippers. In" }, { "docid": "19639388", "title": "", "text": "so in response to the court of appeals, which required plaintiffs to produce specific evidence and argument that legacy shippers were harmed by the alleged conspiracy and Dr. Rausser's damages model therefore reliably estimates overcharges for those shippers. See Inre Rail Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725 F.3d at 254. In light of the mandate from the court of appeals, it would have been irresponsible for plaintiffs not to develop these legacy shipper arguments on remand. Defendants also contend that plaintiffs' new argument regarding legacy shippers is inconsistent with plaintiffs' original theory of liability. See Defs. Supp. Opp. at 9. They argue that plaintiffs are attempting to \"evade the D.C. Circuit's holding\" by abandoning their previous arguments regarding more aggressive fuel surcharges and a structural break between the pre-class period and the start of the alleged conspiracy and \"conform[ing] the liability theory to whatever the model finds.\" Id. Defendants are correct that the D.C. Circuit stated that plaintiffs' argument on appeal that \"antitrust violations may also have tainted even legacy contracts ... runs directly counter\" to this Court's previous \"factual finding that 'the fuel surcharge programs applied before the class period were nothing like the widespread and uniform application of standardized fuel surcharges during the class period.' \" In re Rail Freight Fuel SurchargeAntitrust Litig.-MDL No. 1869, 725 F.3d at 254 (quoting Rail Freight III, 287 F.R.D. at 48 ). Plaintiffs assert, however, that defendants' false positives argument to the court of appeals was based on a false premise that all legacy shippers were bound by rates negotiated before the start of the alleged conspiracy. See Pls. Supp. Mem. at 13-15. On remand, plaintiffs submit that supplemental expert work from Dr. Rausser demonstrates that \"a large percentage of shipments under what defendants identified as 'legacy' contracts were, in fact, subjected to FSC formulas established while the conspiracy was ongoing and were thereby tainted by the conspiracy.\"Id. at 13. According to plaintiffs, because legacy shippers were in fact harmed by the alleged conspiracy, Dr. Rausser's damages model reliably shows overcharges for legacy shipments and his damages model is not" } ]

[ { "docid": "23187319", "title": "", "text": "and leaves no room for artistic treatment, and cannot be copyrighted. The defendant relies upon Royal Sales Co. v. Gaynor, 164 Fed. 207, in which the Circuit Court of the United States for the Southern District of New York held that the copyright of a book did not cover a monogram of a campaign badge described therein. In that opinion it was said that the validity of the copyright of the book was not questioned, but that “the monogram was not a ‘cut, print or engraving,’ ” within the meaning of the only words of the copyright law at all appropriate to it, “because it was not a pictorial illustration ‘connected with the fine arts,’ ” as required by the Copyright Act of June 18, 1874. That, however, was the case of a single print, and, if correctly decided, “does not touch this case.” But the Gaynor Case, in holding that the monogram was not a “cut, print or engraving,” because it was not a pictorial illustration connected with the fine arts, may be difficult to reconcile with the decision in Bleistein v. Donaldson, 188 U. S. 239, 23 Sup. Ct. 298, 47 L. Ed. 460, to which it makes no reference. In the Bleistein Case the court, referring to the Copyright Act, said that the act provides that “in the construction of this act, the words ‘engraving,’ ‘cut’ and ‘print’ shall be applied only to the pictorial illustrations or works connected with the fine arts,” and added: “We see no reason for talcing the words ‘connected with the fine arts’ as qualifying anything except the word ‘works.’ ” The Gaynor Case also appears to be in conflict with J. H. White v. Shapiro (D. C.) 227 Fed. 957, Da Prato Statuary Co. v. Giuliani Statuary Co. (C. C.) 189 Fed. 90, and National Cloak & Suit Co. v. Kaufman (C. C.) 189 Fed. 215. The defendant also relies upon J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 C. C. A. 250, decided by the Circuit Court .of Appeals in the Seventh Circuit. The publication involved was" } ]

[ { "docid": "21260478", "title": "", "text": "illustrates the great liberality in construing the copyright statutes enacted pursuant to the Constitution. As stated by the Supreme Court in Bobbs-Merrill Co. v. Straus, (1908) 210 U.S. 339, at 346, 28 S.Ct. 722, at 724, 52. L.Ed. 1086: “The copyright statutes ought to be reasonably construed with a view to effecting the purposes intended by Congress. They ought not to be-unduly extended by judicial construction to include privileges not. intended to be conferred, nor so narrowly construed as to deprive-those entitled to their benefit of the-rights Congress intended to grant.”' On the other hand, under their particular facts, advertising, books, dramatic composition, drawings, historical facts,, ideas, law reports, laws maps, names,, titles, news, public domain reports, plans and systems (i. e., bookkeeping), and' statutes have been .held not to be registerable material within the purview of .the copyright laws. The trial judge recognizes that catalogues and directories are copyrightable. Leon v. Pacific Telephone and Telegraph Co., 91 F.2d 484 (9th Cir.1937); Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C.C.D.Minn.1911). As a general proposition, the rule as-stated in Ansehl v. Puritan Pharmaceutical Co., 61 F.2d 131 (8th Cir.1932),. is still a correct statement of the law-It was held by the court at page 138: “The defendants might appropriate the ideas and express them in their own pictures and in their own language, but they could not appropriate the plaintiff’s advertisement by copying his arrangement of ma terial, his illustrations and language, and thereby create substantially the same composition in substantially the same manner, without subjecting themselves to liability for infringement.” However, this case still requires some literary or artistic merit in order to •create a copyrightable subject. In the case at bar, there is a mere .•advertisement consisting of a bare list of articles and prices. The trial judge cannot, under any test of literary or artistic merit, find such advertisement to be the proper subject of a valid copyright. It clearly lacks the legal minimum =of originality necessary for a copyright. The catalogues or other advertisements held to be copyrightable had some originality or quasi-artistic" }, { "docid": "195444", "title": "", "text": "a lucid and forceful description by arrangement of the essential data. The district court found this effort sufficiently original to justify copyright. The originality consists in the description of each item, not in the arrangement of the various descriptions. Therefore, each copyrightable item in plaintiff’s catalog is a component part protected by § 3. Some decisions contain dicta which confuse the distinct question of the separate protection of a component part with the material and substantial test, which applies to infringement generally, either of a part or of a whole. See Mathews Conveyor Co. v. Palmer-Bee Co., 6 Cir., 1943, 135 F.2d 73; Perkins Marine Lamp & Hardware Co. v. Goodwin Stanley Co., D.C.N.Y.1949, 86 F.Supp. 630; Sieff v. Continental Auto Supply, D.C.Minn.1941, 39 F.Supp. 683. This confusion apparently originates in the indiscriminate use of a rule which has its chief utility in protecting literary and scientific endeavors, e.g. Toksvig v. Bruce Pub. Co., 7 Cir., 1950, 181 F.2d 664; Henry Holt & Co., to Use of Felderman v. Liggett & Myers Tobacco Co., D.C.Pa.1938, 23 F.Supp. 302, and the danger of confusion is increased by a failure to distinguish between a compilation such as a city directory, R. L. Polk & Co. v. Musser, D.C.Pa.1952, 105 F.Supp. 351, affirmed 3 Cir., 1952, 196 F.2d 1020, and a composite work. However, the component parts of trade-catalogs have been protected under § 3 without any inquiry as to whether the whole catalog was materially and substantially infringed. In Da Prato Statuary Co. v. Giuliani Statuary Co., C.C.Minn. 1911, 189 F. 90, at page 93, the court said: “The complainant having copyrighted its entire catalogue was entitled to the protection of the copyright law as to each cut contained therein; * * *. Other cases have held likewise. National Cloak & Suit Co. v. Kaufman, C.C.Pa.1911, 189 F. 215; Lindsay & Brewster, Inc., v. Verstein, D.C.Me.1937, 21 F.Supp. 264; see Basevi v. Edward O’Toole Co., D.C.N.Y. 1939, 26 F.Supp. 41. The findings in the instant case, which are amply supported by the record, require the application of § 3 of the Copyright" }, { "docid": "23683330", "title": "", "text": "Court, and then it was not specifically passed upon. Westermann Co. v. Dispatch Printing Co., 249 U. S. 100, 39 S. Ct. 194, 63 L. Ed. 499. The advertisement there in question contained “pictorial illustrations of styles in women’s apparel.” The fact that the court assumed the validity of the copyright, however, indicates its adherence to the standard set by the Bleistein Case. In this circuit, several cases have been decided involving copyrights of somewhat similar compositions. Cleland v. Thayer, 121 F. 71, 72 (C. C. A. 8th, 1903). This suit involved the infringement of a copyrighted colored photograph of Colorado scenery. The court said: “The case _of Bleistein et al. v. Donaldson Lithographing Co., * * * in which the opinion was handed down since the submission of this case, holds that photographs and pictures such as the bill in this case describes may be copyrighted under the act of Congress ; and, on the authority of that case and its citations, the decree of the Circuit Court is reversed. *' * * ” Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C. C., Minn., 1911). This case involved the infringement of a copyright of a catalogue containing pictures and cuts of statuary, and- an injunction against such infringement was granted. Golden Rule v. B. V. D. Co., 242 F. 929 (C. C. A. 8th, 1917). This suit involved the infringement of a copyright of a print of a young man clad in underwear. The validity of the copyright was not in issue arid was not questioned by the court. Fargo Merc. Co. v. Brechet & Richter Co., 295 F. 823 (C. C. A. 8th, 1924). This involved the infringement of a copyrighted label used on bottles and cartons, containing recipes, a fanciful emblem, plaintiff’s name, and other printed advertising matter. An injunction had been granted by the lower court, arid the decree was affirmed. On page 828 of the opinion appears the following language: “The fact that these labels might be used, or were intended to be used, for advertising purposes, is not a bar" }, { "docid": "9765989", "title": "", "text": "reproduced. Further, the pages containing errors could not be exactly reproduced in type, but would be by photographing them. Plaintiff’s catalog is copyrightable matter. Da Prato Statuary Co. v. Giuliani Statuary Co., C.C., 189 F. 90; J. H. White Mfg. Co. v. Shapiro, D.C., 227 F. 957; Norris et al. v. No-Leak-O Piston Ring Co., D.C., 271 F. 536; Burndy Engineering Co., Inc., v. Penn-Union Electrical Corp., D. C., 25 F.Supp. 507; Kraft v. Cohen, D.C., 32 F.Supp. 821. In the defendant’s catalog as of fact there are many errors, which are exact reproductions of the errors found in plaintiff’s John Simmons Co. catalog, and the reproduction of errors is strong proof of copying. Callaghan v. Myers, 128 U.S. 617, 9 S.Ct. 177, 32 L.Ed. 547; Lawrence v. Dana, F.Cas. No. 8,136; Investment Service Co. v. Fitch Pub. Co., 7 Cir., 291 F. 1010; General Drafting Co. v. Andrews, 2 Cir., 37 F.2d 54; Frank Shepard Co. v. Zachary P. Taylor Pub. Co., 2 Cir., 193 F. 991; Sammons v. Larkin, D.C., 38 F.Supp. 649. Plaintiff collected, edited and compiled the information it received in order to produce the John Simmons Co. catalog, and is entitled to protection, but even had all the information from which plaintiff prepared the said catalog been available to any reputable plumbing trader, that would not give the defendant the right to reproduce photographically any portion of plaintiff’s catalog. Hartfield v. Peterson, 2 Cir., 91 F.2d 998, 1000; Jewelers’ Circular Pub. Co. v. Keystone Pub. Co., 2 Cir., 281 F. 83, 26 A.L.R. 571, certiorari denied 259 U.S. 581, 42 S.Ct. 464, 66 L.Ed. 1074; Yale University Press v. Row, Peterson & Co., D. C., 40 F.2d 290, 291. Units were made up by plaintiff for exclusive use in the John Simmons Co. catalog, which were copied by defendant. Defendant on page 93 of his catalog copied the first item second column on page 25 of plaintiff’s said catalog, a beam clamp bearing Simmon’s trademark. Defendant on page 87 of his catalog copied the first item first column on page 147 of plaintiff’s said catalog," }, { "docid": "23138112", "title": "", "text": "work that the later work may be deemed an infringement. Note 47. Thus, if a person, without making any use of a prior copyrighted work, by his own independent labor produces something similar, there is no infringement. So one work does not violate the copyright in another simply because there is a similarity between the two, if the similarity results from the fact that both works deal with the same subject, or have made use of common sources.” § 278, p. 1114, 13 C. J. Justice Story stated the rule for determining piracy in Emerson v. Davies, 8 Fed. Cas. 615, 624, No. 4,436, 3 Story, 768, as follows: “The true test of piracy or not is ter ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff, as the model of his own book, with colorable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labor, skill, and use of common materials, and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant’s book is, quoad hoc, a servile or evasive imitation of the plaintiff’s work, or a bona fide original compilation from other common or independent sources.” 13 C. J. “Copyright,” § 307, note 91. In West Pub. Co. v. Edward Thompson (C. C.) 169 F. 833, 834, the court said: “Actionable infringement of copyright may consist of mere paraphrasing or avoidance of the appearance of copying while still appropriating the subject-matter, may be proved either by internal evidence, depending on the sequence of ideas and language in such numbers as inevitably compels the conclusion that the copyrighted work was the source of the infringing publication, or by direct testimony as to the manner in which the work has been done.” In considering the weight of the circumstantial evidence of copying derived from an analysis of similarities between the play and the story, the question of intent to copy is an important factor, although," }, { "docid": "8685910", "title": "", "text": "moved to dismiss the bill. In support of the motion it is urged that the copied matter is negligible in quantity, that its literary or scientific content is insignificant, and that the copying does not exceed a fair use of a scientific treatise; due acknowledgment having been made to the author. In order to constitute an infringement of the copyright of a book if is not necessary that the whole or even a large portion of the book shall have been copied. It is sufficient if a material and substantial part shall have been copied, even though it be but a small part of the whole. Lawrence v. Dana, 15 Fed.Cas. pp. 26, 60, No. 8,136, 4 Cliff. 1; Campbell v. Scott, 11 Sim. 31, 11 L.J.Ch. 166, 6 Jur. 186, 59 Eng.Reprint 784; Trade Auxiliary Co. v. Middlesborough & District Tradesmen’s Protection Assn., 40 Ch.Div. 425, 58 L.J.Ch. 293, 66 L.T. 681, 37 W.R. 337, 5 T.L.R. 254, C.A.; Leslie v. Young & Sons, [1894] A.C. 335, 6 R. 211, H.L.; Cooper v. Stephens, [1895] 1 Ch. 567; West Pub. Co. v. Lawyers’ Coop. Pub. Co., 2 Cir., 79 F. 756, 35 L.R.A. 400; DaPrato Statuary Co. v. Giuliani Statuary Co., C.C., 189 F. 90. “If so much is taken, that the value of the original is sensibly diminished, or the labors of the original author are substantially to an injurious extent appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto.” Folsom v. Marsh, 9 Fed.Cas. pp. 343, 348, No. 4,901, 2 Story 100. The reproduction need not be literal and exact; it is a piracy if it appears that the copyrighted work has been copied, although altered or paraphrased. Lawrence v. Dana, supra; West Pub. Co. v. Edward Thompson Co., 2 Cir., 176 F. 833; West v. Francis, 5 B. & Ald. 737, 1 Dow. & Ry. K. B. 400, 106 Eng.Reprint 1361. Here it appears that three sentences have been taken from Dr. Felderman’s book and quoted, although not exactly, in the defendant’s pamphlet.' While these constitute but a small" }, { "docid": "22907374", "title": "", "text": "so near to the original as to give to every person seeing it the idea created by the original.’ ” Section 3 of the Copyright'Act of March 4, 1909 (35 Stat. 1075 [Comp. St. § 9519]), provides protection for all the copyrightable component parts of the thing copyrighted, and the proprietor has all the rights in respect thereto which he would have, if each part were individually copyrighted under the act. The courts have given this meaning to this section. Da Prato Statuary Co. v. Guiliani Co. (C. C.) 189 Fed. 90; Mail & Express Co. v. Life Pub. Co., 192 Fed. 899, 113 C. C. A. 377. Copying is not confined to a literary repetition, but includes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration. The disguise of the source from which the material was derived does not defeat the protection of the copyright, nor does taking a part of the work constitute an evasion of the copyright. Lawrence v. Dana, Fed. Cas. No. 8, 136, 4 Cliff. 80. The appellees did not take all of the copyrighted matter, or all its principal characters, but took one, the idea of the horse “Sparky.” We do not think it avoids the infringement of the.copyright to take the substance or idea, and produce it through a different medium, and picturing in shape and details in sufficient imitation to make it a true copy of the character thought of by the appellant’s employee. Doing this is omitting the work of the artisan, but appropriating the genius of the artist. Falk v. Howell & Co. (C. C.) 37 Fed. 202. In the cited case, the court said: “That their design is copied directly from the copyrighted photograph is not denied, but it is urged that infringement is avoided, because it is larger than the photograph, and is stamped on leather, and is intended for the bottom or back of a chair. It is thought that this proposition cannot be maintained. Differences which relate merely to size and material are not" }, { "docid": "13982337", "title": "", "text": "F.2d 441 (2d Cir. 1937). “Originality” in copyright law is not a question of creativity or novelty, but one of authorship or source of origin. “ ‘Original’ in reference to a copyrighted work means that the particular work ‘owes its origin’ to the ‘author.’ No large measure of novelty is necessary.” Alfred Bell & Co., Ltd. v. Catalda Fine Arts, Inc., 191 F.2d 99, 102 (2d Cir. 1951). To paraphrase the language of the Supreme Court in the Bleistein case, appellees were free to copy the original oil can, but they were not free to copy Baxter’s copy of the can. The third ground of the trial court’s decision was that of insufficient notice of the copyright. This ground is also twofold. First, inasmuch as much of the material in the catalogues was admittedly not copyrightable, the notice of the copyright printed on the cover of the catalogues was insufficient to give notice to the public as to which of the myriad items in the catalogues were copyrighted. Secondly, the language used in the certificates of copyright was so indefinite and uncertain as to be a failure of notice to the public. The first basis of the court’s conclusion as to notice is contrary to the express language of the statute, 17 U.S.C. § 3, and to the holdings of the decided cases. Markham v. A. E. Borden Co., Inc., 206 F.2d 199 (1st Cir. 1953); Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C.C.D.Minn.1911); National Cloak & Suit Co. v. Kaufman, 189 F. 215 (C.C.M.D.Pa.1911); P.I.C. Design Corporation v. Sterling Precision Corp., 231 F.Supp. 106 (S.D.N.Y.1964). The second ground was that the language of the copyright certificates was too indefinite and uncertain. The certificates stated, “New matter consists of new artistic drawings of merchandise, new textual and pictorial material not previously published and new layouts and revisions.” Given the language of 17 U.S.C. §. 3, quoted in note 5, supra, we find that the certificates give all notice the statute requires and the conclusion that the language of the certificates is too indefinite and uncertain is" }, { "docid": "11955661", "title": "", "text": "It has been frequently held that the copyright law does not afford protection against the use of an idea, but only as to the means by which the idea is expressed. Holmes v. Hurst, 174 U. S. 82, 86, 19 S. Ct. 606, 43 L. Ed. 904; Kalem Co. v. Harper Bros., 222 U. S. 55, 63, 32 S. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285. As said in Dymow v. Bolton (C. C. A.) 11 F.(2d) 690, 691: “It is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist.” Obviously, it seems to us, the appellee could not copyright a system or method of selling a product. Baker v. Selden, 101 U. S. 99, 25 L. Ed. 841. It could copyright a set of original symbols or designs which it uses as a means of effecting the sale of its product. Viewing the copyrights as attaching to the catalogues in their entirety, the question, then, is whether there has been an appropriation by appellant of so substantial a part of the appellee’s product as to amount to infringement. Da Prato Co. v. Giuliani Co. (C. C.) 189 F. 90; Eggers v. Sun Sales Corp. (C. C. A.) 263 F. 373, 375. We are of opinion that the appellant has not infringed in the use of designs, as such, nor in the way in which it has arranged its designs nor in the colors or headings it has used. It does appear that certain designs which it uses are so similar to some of the appellee’s as to indicate copying and amount to infringement. The lower court hold that there were sixty-two of these designs. We think there are only fourteen, namely — 1, 2, 4, 5, 6, 7, 8, 9, 17, 18, 32, 54, 62, and 63 of Exhibit 19. We therefore hold that, except as to the designs mentioned, there is no infringement. Whether the appellee has sustained" }, { "docid": "23683331", "title": "", "text": "Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C. C., Minn., 1911). This case involved the infringement of a copyright of a catalogue containing pictures and cuts of statuary, and- an injunction against such infringement was granted. Golden Rule v. B. V. D. Co., 242 F. 929 (C. C. A. 8th, 1917). This suit involved the infringement of a copyright of a print of a young man clad in underwear. The validity of the copyright was not in issue arid was not questioned by the court. Fargo Merc. Co. v. Brechet & Richter Co., 295 F. 823 (C. C. A. 8th, 1924). This involved the infringement of a copyrighted label used on bottles and cartons, containing recipes, a fanciful emblem, plaintiff’s name, and other printed advertising matter. An injunction had been granted by the lower court, arid the decree was affirmed. On page 828 of the opinion appears the following language: “The fact that these labels might be used, or were intended to be used, for advertising purposes, is not a bar to copyright. It has many times been held that though a work of art or an original intellectual composition may be used for advertising purposes, or even though it is expressly designed for such purposes, this does mot prevent it from being copyrighted” — citing cases. And further: “It is doubtful whether the first part, standing alone, is copyrightable; it has little, if any, merit, and might well be called a mere advertisement. The second part, namely, the recipes, is of a different character. They are not a mere advertisement; they are original compositions, and serve a useful purpose, apart from the mere advertisement of the article itself. They serve to advance the culinary art.” The following types of advertising have been held to be proper subjects of copyright: Circus posters, Bleistein v. Donaldson Lithographing Co., supra; catalogue cuts of orthopedic devices, Campbell v. Wireback (C. C. A. 4th) 269 F. 372, 17 A. L. R. 743; lithographs of vegetable products, Stecher Lithog. Co. v. Dunston Lithog. Co., 233 F. 601 (D. C., W. D." }, { "docid": "6968761", "title": "", "text": "LEARNED HAND, District Judge (after stating the facts as above). First, as to validity: I think that the plaintiff’s book is clearly a “directory” or án “other compilation;” and as such it falls within section 5 (a) of the Copyright Act (Comp. St. § 9521 [a]). Under section 6 (Comp. St. 9522) it is not necessary in such cases that the matter compiled should itself be copyrighted; it may be in the public domain. Therefore it is altogether immaterial that the trade-marks themselves could not be copyrighted, or whether section 3 of chapter 301 of the Laws of 1874 still remains in force. If the trade-marks be “prints” at all, under section 5 (k) of the Copyright Act, I may assume that, being designed for use on articles of manufacture, they cannot be copyrighted. Royal Sales Co. v. Gaynor, 164 Fed. (C. C.) 207, was the case of a single print or label; it does not touch this case. J. L. Mott Iron Works v. Clow, 82 Fed. 316, 27 C. C. A. 250 (C. C. A. 7th), was, however, closer. There the copyrighted work was a trade catalogue, consisting of a collection of photographic illustrations of bathtubs and the like. It was denied protection chiefly on the ground that it was an advertisement, but also in part because it was thought to have no aesthetic quality. In both respects the case must be considered overruled by Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 23 Sup. Ct. 298, 47 L. Ed. 460, and it has been so treated subsequently. J. H. White Co. v. Shapiro (D. C.) 227 Fed. 957. See, also, Da Prato Statuary Co. v. Quiliani Statuary Co. (C. C.) 189 Fed. 90. In any event, the plaintiff’s book was not an advertisement, and in so far as Miss Clark, the plaintiff’s draftsman, prepared free-hand drawings from the impressions of tire trade-marks, it cannot possibly be said that there was no element of aesthetic quality, whether it was bad or good, and however aesthetic quality is defined. In those instances in which the trade-mark owners sent" }, { "docid": "22907373", "title": "", "text": "-idea of the design of “Spark Plug,” or “Sparky.” The question presented to us is whether manufacturing and duplicating the horse as a figure doll is a copy of the copyrighted idea of the appellant’s. The Copyright Act (Comp. St. '§ 9517) provides that any person, having complied with the provisions of the act, shall have exclusive right “to print, reprint, publish, copy, and vend the copyrighted work.” A copy is that which ordinary observation would cause to be recognized as having been taken from or the reproduction of another. In White-Smith Co. v. Apollo Co., 209 U. S. 17, 28 Sup. Ct. 323, 52 L. Ed. 655, 14 Ann. Cas. 628, the court said: “What is meant by a copy? We have already referred to the common understanding of it as a reproduction or duplication of a thing. A definition was given by Bailey, J., in West v. Francis, 5 B. & A. 743. quoted with approval in Boosey v. Whight, 80 L. T. R. 561. He said: ‘A copy is that which, comes so near to the original as to give to every person seeing it the idea created by the original.’ ” Section 3 of the Copyright'Act of March 4, 1909 (35 Stat. 1075 [Comp. St. § 9519]), provides protection for all the copyrightable component parts of the thing copyrighted, and the proprietor has all the rights in respect thereto which he would have, if each part were individually copyrighted under the act. The courts have given this meaning to this section. Da Prato Statuary Co. v. Guiliani Co. (C. C.) 189 Fed. 90; Mail & Express Co. v. Life Pub. Co., 192 Fed. 899, 113 C. C. A. 377. Copying is not confined to a literary repetition, but includes various modes in which the matter of any publication may be adopted, imitated, or transferred with more or less colorable alteration. The disguise of the source from which the material was derived does not defeat the protection of the copyright, nor does taking a part of the work constitute an evasion of the copyright. Lawrence v. Dana," }, { "docid": "9644960", "title": "", "text": "never been the law. Items otherwise copyrightable will not be denied copyright simply because of their advertising purpose, but they do not gain any greater protection than non-advertising materials. Fabrica Inc. v. El Dorado Corp., 697 F.2d 890, 894 (9th Cir.1983) (internal quotations and citation omitted). See also National Cloak & Suit Co. v. Kaufman, 189 F. 215, 217 (1911) (finding copyrightable “pictorial illustrations” of “ladies attired in the latest ... styles” that appeared in a catalog). Instead of looking to the intended or actual use of the photograph, or considering whether its subject matter has commercial value, we evaluate whether it has copyrightable elements. Cases after Burrow-Giles and Bleistein confirmed that a photograph of an object is copyrightable. See, e.g., Rogers, 960 F.2d at 307 (2d Cir.1992) (photograph of puppies); Eastern America Trio, 97 F.Supp.2d at 417 (photographs of “common industrial items” including electrical products); Pagano v. Chas. Beseler Co., 234 F. 963, 964 (S.D.N.Y.1916) (photograph of a scene including the New York Public Library). These are the foundations of copyright applicable to photographs. B. Contemporary Standards for Copyright Protection of Photographs Under the copyright laws, Ets-Hokiris certificate of registration from the U.S. Copyright Office entitled him to a “rebuttable presumption of originality” with respect to the photographs at issue. Smith v. Jackson, 84 F.3d 1213, 1219 (9th Cir.1996) (quoting North Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir.1992)); 17 U.S.C. § 410(c). In moving for summary judgment, the defendants thus initially had the burden of showing the invalidity of Ets-Hokin’s copyright: Under the copyright laws, the registration of a copyright certificate constitutes prima facie evidence of the validity of a copyright in a judicial proceeding commenced within five years of the copy right’s first publication. A certificate of copyright registration, therefore, shifts to the defendant the burden to prove the invalidity of the plaintiffs copyrights. An accused infringer can rebut this presumption of validity, however. To rebut the presumption, an infringement defendant must simply offer some evidence or proof to dispute or deny the plaintiffs prima facie case of infringement. ERG, 122 F.3d at" }, { "docid": "9915759", "title": "", "text": "1 Bond, 540. See, also, Folsom v. Marsh, 2 Story, 100. The plaintiffs might have copyrighted the cut as an independent subject of copyright. They did not choose to do so. So, also, they could have copyrighted each poem or song or editorial composition of their newspaper. If they bad done, this, a reproduction of the copyrighted thing would have been piracy, however innocent the defendant might have been of intentional wrong. They preferred to copyright their newspaper, and secure protection for it as an entire work. The cut was a legitimate part of the protected property, — as much so \"as the poems dr editorial articles. The pictorial illustrations are one form of language employed by an author to express his ideas, and, when embodiedin a book, are as much a component part of it as the printed text. But they did not thereby copyright the cut as a cut. The statute not only makes provisions for copyrighting charts, prints, cuts, engravings, etc., but makes a distinction between infringement,of a book and of a cut,, engraving, etc. A book is infringed by printing, publishing, importing, selling, or exposing for sale any copy of the book. Section 4964, Bev. St. A chart, print, cut, engraving, etc., is infringed by engraving, etching, working, copying, printing, publishing, importing, selling, or exposing for sale a copy of the chart, cut, etc. Section 4965. It would not be infringement of a book, within these sections, to prepare and arrange the type in exact imitation of the original,- so that a copy of the book might be produced by printing; nor would it be to sell the means of making such a copy to another. The printing and publishing of a cutis an infringement of copyright as well as the printing and publishing a book; but the copying without printing or publishing is infringement only as to the cut, chart, print, engraving, etc. The question here is not whether the defendant has infringed the plaintiffs’ copyright in a cut; but whether he has infringed their copyright in their book by making a plate from which" }, { "docid": "23683332", "title": "", "text": "to copyright. It has many times been held that though a work of art or an original intellectual composition may be used for advertising purposes, or even though it is expressly designed for such purposes, this does mot prevent it from being copyrighted” — citing cases. And further: “It is doubtful whether the first part, standing alone, is copyrightable; it has little, if any, merit, and might well be called a mere advertisement. The second part, namely, the recipes, is of a different character. They are not a mere advertisement; they are original compositions, and serve a useful purpose, apart from the mere advertisement of the article itself. They serve to advance the culinary art.” The following types of advertising have been held to be proper subjects of copyright: Circus posters, Bleistein v. Donaldson Lithographing Co., supra; catalogue cuts of orthopedic devices, Campbell v. Wireback (C. C. A. 4th) 269 F. 372, 17 A. L. R. 743; lithographs of vegetable products, Stecher Lithog. Co. v. Dunston Lithog. Co., 233 F. 601 (D. C., W. D. N. Y.); catalogue designs of brassware, White Mfg. Co. v. Shapiro, 227 F. 957 (D. C., S. D. N. Y.); catalogue pictures of statuary, Da Prato Statuary Co. v. Giuliani Statuary Co., supra; fashion plates of feminine styles, National Cloak & Suit Co. v. Kaufman, 189 F. 215 (C. C., M. D. Pa.); catalogue illustrations of furniture, Davis v. Benjamin (1906) 2 Ch. D. 491; catalogue of illustrations of furniture, Maple & Co. v. Junior Army and Navy Stores, L. R. 21 Ch. D. 369; catalogue illustrations of designs for monuments, Grace v. Newman, L. R. 19 Eq. 623. The following compositions more or less analogous have also been held subjects of copyright: Colored photographs of Colorado scenery, Cleland v. Thayer, supra; cuts of scenery, Rigney v. Dutton, 77 F. 176 (C. C., S. D. N. Y.); photograph of a model, Gross v. Seligman, 212 F. 930 (C. C. A. 2d); photograph of a yacht under sail; Bolles v. Outing Co. (C. C. A. 2d) 77 P. 966, 46 L. R. A. 712, affirmed 175" }, { "docid": "21811669", "title": "", "text": "author the exclusive right in his work for a limited term of years which have been published in accordance with the statute. Caliga v. Inter Ocean Newspaper Co. (C. C. A.) 157 F. 186, affirmed 215 U. S. 182, 30 S. Ct. 38, 54 L. Ed. 150; Werckmeister v. American Lithographic Co. (C. C. A.) 134 F. 321, 68 L. R. A. 591; Wheaton v. Peters, 33 U. S. (8 Pet.) 591, 8 L. Ed. 1055; Baker v. Libbie, 210 Mass. 599, 97 N. E. 109, 37 L. R. A. (N. S.) 944, Ann. Cas. 1912D, 551; Drone on Copyright, p. 100. At common law, as well as under the copyright acts, it is the form, sequence, and manner in which' the composition expresses the idea which is secured to the author, not the idea. White-Smith Music Co. v. Apollo Co., 209 U. S. 1, 28 S. Ct. 319, 52 L. Ed. 655, 14 Ann. Cas. 628; Stowe v. Thomas, Fed. Cas. No. 13, 514; Haskins v. Ryan, 71 N. J. Eq. 575, 64 A. 436. The test of piracy is stated in 13 Corpus Juris, p. 1136, § 307, as follows: “It has been laid down as the dear result of the authorities in eases of this nature that the trae test of piracy is to ascertain whether the author of the alleged piratical work has in fact used the plan, arrangement, and illustrations of the copyrighted work as the model of his. own work, with colorable alterations and variations only, to disguise the use thereof, or whether the work is the result of his own labor, skill, and use of common materials and common sources of knowledge open to all men, and whether the resemblances are either accidental or arising from the nature of the subject; in other words, whether defendant ’s work is quoad hoc a servile or evasive imitation of the copyrighted work, or a bona fide and original compilation from other common and independent sources. The question' is always simply one of fact, whether defendant copied the matter from complainant’s book or obtained it by" }, { "docid": "195445", "title": "", "text": "23 F.Supp. 302, and the danger of confusion is increased by a failure to distinguish between a compilation such as a city directory, R. L. Polk & Co. v. Musser, D.C.Pa.1952, 105 F.Supp. 351, affirmed 3 Cir., 1952, 196 F.2d 1020, and a composite work. However, the component parts of trade-catalogs have been protected under § 3 without any inquiry as to whether the whole catalog was materially and substantially infringed. In Da Prato Statuary Co. v. Giuliani Statuary Co., C.C.Minn. 1911, 189 F. 90, at page 93, the court said: “The complainant having copyrighted its entire catalogue was entitled to the protection of the copyright law as to each cut contained therein; * * *. Other cases have held likewise. National Cloak & Suit Co. v. Kaufman, C.C.Pa.1911, 189 F. 215; Lindsay & Brewster, Inc., v. Verstein, D.C.Me.1937, 21 F.Supp. 264; see Basevi v. Edward O’Toole Co., D.C.N.Y. 1939, 26 F.Supp. 41. The findings in the instant case, which are amply supported by the record, require the application of § 3 of the Copyright Act and the result is that nine of the plaintiff’s component parts have been infringed in each of the catalogs published by the defendant in 1948 and 1950, making a total of eighteen infringements. It was erroneous for the district court to rule that these nine instances of copying did not amount to infringement. Since there is no showing on the amount of damages arising from these infringements, the plaintiff is entitled to be compensated in the manner provided in 17 U.S.C. § 101(b). We think it is inappropriate for us to assess these damages, as appellant has urged. This highly discretionary function, see F. W. Woolworth Co. v. Contemporary Arts; 1952, 344 U.S. 228, 73 S.Ct. 222 and Douglas v. Cunningham, 1935, 294 U.S. 207, 55 S.Ct. 365, 79 L.Ed. 862, is best performed by the trier of the facts. This is especially so in this case in view of the finding of the district court that Borden distributed its two infringing catalogs with notice of the plaintiffs’ copyright, and therefore the trial court" }, { "docid": "21260477", "title": "", "text": "following classes the work in which copyright is claimed belongs: “(a) Books, including composite and cyclopedic works, directories, gazetteers, and other compilations. “(b) Periodicals, including newspapers. * -x- * * -x- # “ (k) Prints and pictorial illustrations including prints or labels used for articles of merchandise.” Plaintiff claims it falls within either 5(a) or 5(k). It is noted that the earlier cases held intellectual productions which are designed and created to refresh the physical, mental or moral powers by amusing, entertaining or instructing, or by appealing directly to the aesthetic taste, as well as those subjects which directly serve to inculcate mental discipline or add to the store of knowledge, were all within the range of “science and useful arts.” A review of all the cases indicates the following have been held to be register-able material: — books, annotated statutes, cartoons, catalogues, directories, compilations, pamphlets, law reports, translations, dramatic compositions, paintings, drawings, chromos, periodicals, newspapers (not news, per se), phonograph records, photographs, prints,, pictorial illustrations, works of art, models and designs. This long list illustrates the great liberality in construing the copyright statutes enacted pursuant to the Constitution. As stated by the Supreme Court in Bobbs-Merrill Co. v. Straus, (1908) 210 U.S. 339, at 346, 28 S.Ct. 722, at 724, 52. L.Ed. 1086: “The copyright statutes ought to be reasonably construed with a view to effecting the purposes intended by Congress. They ought not to be-unduly extended by judicial construction to include privileges not. intended to be conferred, nor so narrowly construed as to deprive-those entitled to their benefit of the-rights Congress intended to grant.”' On the other hand, under their particular facts, advertising, books, dramatic composition, drawings, historical facts,, ideas, law reports, laws maps, names,, titles, news, public domain reports, plans and systems (i. e., bookkeeping), and' statutes have been .held not to be registerable material within the purview of .the copyright laws. The trial judge recognizes that catalogues and directories are copyrightable. Leon v. Pacific Telephone and Telegraph Co., 91 F.2d 484 (9th Cir.1937); Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C.C.D.Minn.1911). As" }, { "docid": "185759", "title": "", "text": "consideration was acquired. Copyright vests upon the publication of the book or publication with the notice of copyright under section 9 of the act. The allegations in the bill are full and sufficient showing that the necessary steps of the statute were observed in securing the right and certificate of copyright. The second count questions the character of the person of the complainant as entitled to copyright. The complainant is a corporation created by the laws of New York, which, according to the bill, “wrote, designed and compiled and caused to be written, designed and compiled by those employed by it for the purpose, all of them citizens and residents of the United States, or aliens domiciled within the United States at the time of the first publication” the book of which it was the proprietor. The present act of Congress confers copyright on “the author or proprietor” (section 8), and provides that “the word ‘author’ shall include an employer in the case of works made for hire” (section 62). Under the old law which did not recognize or contemplate in its provisions our modern conditions, as the present law, corporations were even regarded as proper persons to secure copyright (Mutual Advertising Company v. Refo [C. C.] 76 Fed. 961; Edward Thompson Co. v. American Law Book Co. [C. C.] 119 Fed. 217; Schumacher v. Schwencke [C. C.] 25 Fed. 466) ; and then, as well as now, the employer had the right to the copyright in the literary product of a salaried employé (Collier Engineer Co. v. United Correspondence School Co. [C. C.] 94 Fed. 152; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640). )All of the remaining counts deserving notice may be considered in connection with the other (2) allegations concerning the subject-matter as being copyrightable. The illustrations which the defendant is alleged to have copied from the complainant’s copyrighted book are so called pictorial illustrations, being pictures of ladies attired in the latest or up-to-date styles, depicting the fashions in dress, supplemented by information concerning the materials which the complainant offers to make up in" }, { "docid": "13982338", "title": "", "text": "of copyright was so indefinite and uncertain as to be a failure of notice to the public. The first basis of the court’s conclusion as to notice is contrary to the express language of the statute, 17 U.S.C. § 3, and to the holdings of the decided cases. Markham v. A. E. Borden Co., Inc., 206 F.2d 199 (1st Cir. 1953); Da Prato Statuary Co. v. Giuliani Statuary Co., 189 F. 90 (C.C.D.Minn.1911); National Cloak & Suit Co. v. Kaufman, 189 F. 215 (C.C.M.D.Pa.1911); P.I.C. Design Corporation v. Sterling Precision Corp., 231 F.Supp. 106 (S.D.N.Y.1964). The second ground was that the language of the copyright certificates was too indefinite and uncertain. The certificates stated, “New matter consists of new artistic drawings of merchandise, new textual and pictorial material not previously published and new layouts and revisions.” Given the language of 17 U.S.C. §. 3, quoted in note 5, supra, we find that the certificates give all notice the statute requires and the conclusion that the language of the certificates is too indefinite and uncertain is erroneous. In fairness to the learned trial judge, it should be pointed out that the great majority of the authorities relied upon in this opinion were cited neither to the trial court nor to this court. The court did not mention in its memorandum decision anything relative to a finding that appellees copied from appel lant’s catalogue. However, a perusal of the record as a whole demonstrates to our complete satisfaction that the court was convinced that there was substantial copying. Therefore, the liability of appellees has been established and the only remaining issue to be tried is that of damages, including the question of the extent of the copying, and whether appellant is entitled to injunctive relief. Reversed and remanded for further proceedings in accordance herewith. . “The notice of copyright required by section 10 of this title shall consist either of the word ‘Copyright’, the abbreviation ‘Copr.’, or the symbol ‘©’, accompanied by the name of the copyright proprietor, and if the work be a printed literary, musical, or dramatic work, the notice" } ]

[ { "docid": "21268301", "title": "", "text": "to support the Secretary’s decision that plaintiff did not show himself to be unable to engage in any substantial gainful activity as a direct result of a medically determinable impairment which was expected either to result in death or to be of long-continued and indefinite duration. The recent case of Underwood v. Ribicoff, 4 Cir., 298 F.2d 850 (1962) provides a very clear outline of the elements of proof that bear upon the ultimate fact of disability: “ * * * there are four elements of proof to be considered in making a finding of Claimant’s ability or inability to engage in any substantial gainful activity. These are: (1) the objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses, and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability testified to by Claimant, and corroborated by his wife and his neighbors, (4) Claimant’s educational background, work history, and present age.” 298 F.2d at page 851. The court further states: “However, expert medical diagnostic opinion and evidence, alone, may not enable a fact finder properly to determine whether or not such limitation of capacity amounts to disability within the terms of the Act. Where it is not possible to reach a determination on such evidence it then becomes necessary to consider subjective testimony to determine accurately the effect of these impairments upon the Claimant. Such evidence may be entitled to great weight on the matter of disability, especially where such evidence is uncontradicted in the record. Even where medical opinion is very strong in favor of disability, this subjective evidence will always be a significant source of corroboration.” 298 F.2d at page 852. (Emphasis supplied) These statements of the court suggest the process for finding disability under the Act. Once proper medical evidence, buttressed by subjective evidence from the claimant, has shown a sufficiently severe impairment, it must be determined if the impairment plus plaintiff’s educational" } ]

[ { "docid": "13180743", "title": "", "text": "have been considered in Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962); Bradey v. Ribicoff, 298 F.2d 855 (4th Cir. 1962); and Bramlett v. Ribicoff, 298 F.2d 858 (4th Cir. 1962). Since each case depends upon its own facts, further citation of authority is unnecessary, The cIaimant.plaintiff) McPherson, at ^ tíme of the hearing on April 4> 1961> wag fi g old and had worked for the Western Electric company for forty_two years. There he had attained the position of supervisor on the installatíon flf central office telephone systemS; when, on March 9, 1959, he suffered a cerebral vascular attack. He has not worked since. McPherson has a high school education, , . ,, . , ’ and, m addition, he received management training while with the company. His condition was diagnosed by Dr. Barbara Huffish as “left hemianopsia”, caused by a brain lesion or thrombosis. Tiie plaintiff himself claims that his vision is Permanently impaired, that in order to see properly he must turn his bead flom s*de to s*de> be bas a ^«cult time walking, and that he cannot drive. Also, he contends that he is totally “capable of getting around at niSht He bas been considered permanent]y dlsabled b^ Western Electric Company, and the Home Life Insurance Company of New York has waived prem“ms on his life policy, presumably because of disability, Two of McPherson’s physicians, Dr. Samuel Pécora and Dr. Anthony Ambrose, state that his visual condition is permanent and that he is unable to work. Dr. Ambrose, an ophthalmologist, makes the specific finding that “the nasal half of the right field and the temporal half of the left field have been lost.” However, neither doctor assigns any degree of visual acuity or any percentage as to concentric contraction of the claimant’s visual fields. Indeed, his impairment does not prevent his reading, looking at television, doing work around the house in a somewhat slower manner than prior to the onset of his present troubles, and so on. In short, his visual impairment in no way has approached the level of severity contemplated by Section 404.-1502" }, { "docid": "357105", "title": "", "text": "a man who can do-only what claimant can do. Erickson v. Ribicoff, 6 Cir., 305 F.2d 638 (1962); Roberson v. Ribicoff, 6 Cir., 299 F.2d 761 (1962); Kerner v. Flemming, 2 Cir., 283 F.2d 916, 921 (1960). In Jarvis v. Ribicoff, 6 Cir., 312 F.2d, 707, 710 (1963), the court adopted the language in Ellerman v. Flemming, D.C. Mo., 188 F.Supp. 521, 527 (1960), as a correct statement of the applicable rule: “Under the Social Security Act, unlike some other statutes, it is not the burden of the claimant to introduce evidence which negatives every imaginable job open to men with his impairment, and of his age, experience and education. It is quite enough if he offers evidence of what he has done, of his inability to do that kind of work any longer, and, of his lack of particular experience for any other type of job. If there are other kinds of work which are available and for which the claimant is suited, it is the defendant’s burden to adduce some evidence from which a finding can be made that he can do some type of work; actually, not apparently.” The plaintiff here is a man fifty-eight years old with a limited education whose work history indicates that his principal employment has been as a railroad section laborer. His employment with the railroad company was terminated March 29, 1961, because of his physical impairments. The Hearing Examiner’s determination that plaintiff can work indoors as an elevator operator, janitor, or other similar jobs does not satisfy the defendant’s burden of adducing evidence on which a finding can be based that he can •engage in some type of substantial gainful activity. There must be substantial evidence to show not only that plaintiff can engage in such activity but that employment is available to him in the fields of endeavor which the Hearing Examiner found him capable of handling. Roberson v. Ribicoff, supra; Hall v. Fleming, 6 Cir., 289 F.2d 290 (1961). It appears that the defendant has failed to adduce the required evidence in this ease. The Court is of the" }, { "docid": "12389920", "title": "", "text": "be expected to last for a continuous period of not less than twelve months; and second, there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966); Bujnovsky v. Celebrezze, 343 F.2d 868 (3d Cir. 1965); Tinsley v. Finch, 300 F.Supp. 247 (D.S.C.1969); Jones v. Cohen, 295 F.Supp. 1302 (W.D.Pa. 1969); Matias Rivera v. Gardner, 286 F.Supp. 305 (D.P.R.1968). When making a finding as to plaintiff’s ability or inability to engage in any substantial gainful activity, there are four elements of proof to be considered. They are: (1) medical data and findings, (2) expert medical opinions, (3) subjective complaints, and (4) plaintiff’s age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962); Stefero v. Gardner, 285 F.Supp. 898 (E.D.Pa.1968); Dabravalskie v. Gardner, 281 F.Supp. 919 (E.D.Pa.1968). Plaintiff, at the time of the hearing, was 59 years of age, married, and the father of a child over the age of eighteen. He received an education through the eighth grade and went to work in the coal fields at the age of fifteen or sixteen. He testified that he had worked in the coal fields his entire life until August of 1967 when he terminated his employment because of the combined impairments of pneumoconiosis and osteoarthritis of the spine and knees. During the course of his employment in the coal fields, he hand-loaded coal for ten years, set timber back, worked at the face of the mine, drilled holes, shot coal, and was a check weigh-man for eight years. During the course of his employment in the mines, he had the opportunity to operate some cutting machinery. Plaintiff testified that he began to experience a difficulty in getting down upon his knees in the mines sometime in the latter part of 1966 and that he attempted to remain with his job and use linament for about a year. The linament only gave him temporary relief, and he found it necessary to cease work in August of 1967. He testified" }, { "docid": "19053227", "title": "", "text": "engaged in her usual type of occupation” finds full support in the record. Accordingly, defendant’s motion for summary judgment is granted; plaintiff’s cross-motion is denied. . 42 U.S.C. § 405(g). . 42 U.S.C. § 423 in part reads: “(d) (1) The term ‘disability’ means— (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months; * * * (2) For purposes of paragraph (1) (A) — (A) an individual * * * shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy * * . Cf. Flack v. Cohen, 413 F.2d 278, 280 (4th Cir. 1969) ; Miracle v. Celebrezze, 351 F.2d 361, 383 (6th Cir. 1965). . 42 U.S.C. § 405(g). Rinaldi v. Ribicoff, 305 F.2d 548, 549, 550 (2d Cir. 1962) ; Kerner v. Flemming, 283 F.2d 916, 921 (2d Cir. 1960) ; cf. Adams v. Flemming, 276 F.2d 901 (2d Cir. 1960). . Compare Adama v. Flemming, 276 F.2d 901, 903-904 (2d Cir. 1960) with Ber v. Celebrezze, 332 F.2d 293, 300 (2d Cir. 1964). . See Adams v. Flemming, 276 F.2d 901, 904 (2d Cir. 1960) ; see also Gotshaw v. Ribicoff, 307 F.2d 840, 844-845 (4th Cir. 1962), cert. denied sub nom. Heath v. Celebrezze, 372 U.S. 945, 83 S.Ct. 938, 9 L.Ed.2d 970 (1963) ; Poliak v. Ribicoff, 300 F.2d 674, 677 (2d Cir. 1962) ; Graham v. Ribicoff, 295 F.2d 391, 394 (9th Cir. 1961). . See, e. g., Dupkunis v. Celebrezze, 323 F.2d 380, 381 n. 1 (3d Cir. 1963) ; Gotshaw v. Ribicoff, 307 F.2d 840, 845 (4th Cir. 1962) ; Adams v. Flemming, 276 F.2d 901, 904 n." }, { "docid": "20998273", "title": "", "text": "activity. While the burden of proof is upon the plaintiff in this instance, it is not necessary that he eliminate every possibility of employment open to him. Such a requirement of proof would be too stringent and unrealistic to be imposed. Butler v. Flemming, 5th Cir., 1961, 288 F.2d 591; Underwood v. Ribicoff, 4th Cir., 1962, 298 F.2d 850. The only medical evidence as to the plaintiff’s ability to engage in some type of clerical work is the opinion by Dr. Vance that the plaintiff was not suitable socially for work indoors due to his colostomy. Indeed, this is the only opinion on the ability of the plaintiff to engage in clerical activity, and the only opinion of any of the physicians on the question of disability of the plaintiff. On this question, Dr. Vance concludes that the plaintiff is unfit for most work. While such a conclusion is not conclusive on the ultimate fact in issue, it does reflect the opinion of the physician on the severity of the plaintiff’s impairments, the degree of their development, and his physical and mental capacity to resist or adapt to them, and are proper basis for evidentiary inferences on these matters. Underwood v. Ribicoff, supra. Assuming that the plaintiff was physically and mentally qualified for some types of clerical work, the record does not disclose that he has any other education, training or experience that would qualify him for such work. The plaintiff’s only experience as far as the record shows has been that of construction work and the physical labor inherent in the operation of a grocery store. Substantial gainful activity must be within the plaintiff’s physical capacity, and it must also be commensurate with his age, educational attainments, training and experience. Harris v. Ribicoff, supra. On this entire record, considering the objective medical evidence, the medical conclusions as to the severity of plaintiff’s impairments, the subjective evidence of plaintiff’s incapacity, and the evidence of his experience, educational background and age, all of which is uncontroverted for the most part, the only reasonable conclusion to be drawn from all the evidence" }, { "docid": "3225639", "title": "", "text": "Ribicoff, 298 F.2d 850 (4th Cir. 1962). Nevertheless, it is said that this provision of the law does not contemplate that the courts should surrender their “traditional functions,” but that they will view the record as a whole, not for the purpose of making an independent finding, but to determine whether or not the administrative finding is supported by substantial evidence and to see that the Administrative Agency does not act arbitrarily or capriciously in denying just claims or allowing unworthy ones. Thomas v. Celebrezze, supra; Underwood v. Ribicoff, supra; Snyder v. Ribicoff, 307 F.2d 518 (4th Cir. 1962). In determining the meaning of “substantial evidence,” the Courts have held it to be more than a scintilla, but less than a preponderance. Thomas v. Celebrezze, supra. It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and it must be based on the record as a whole. Celebrezze v. Bolas, 316 F.2d 498 (8th Cir. 1963). The Fourth Circuit has pointed out that if there is only a slight preponderance of the evidence on one side or the other, the Secretary’s findings must be affirmed. Underwood v. Ribicoff, supra. Therefore, the immediate task of this Court on this review is to determine whether the defendant’s denial of plaintiff’s claim is supported by substantial evidence. Plaintiff was born April 22, 1910, and at the time of the onset of his alleged disability, June 1948, he was thirty eight years of age. While at attended elementary school to the third grade, he is classified as illiterate. He is divorced and has no children. Generally, his vocational history has been that of a coal miner, although plaintiff’s work record has been sporadic and inconsistent. It appears from the record that he was last employed on a coal buggy handling the cable. His last substantial work was in 1956 and 1957, and in the latter year he ceased work because of an accidental leg fracture. Plaintiff served in the United States Army for approximately three months in 1942 and was given a medical discharge because of a" }, { "docid": "13180742", "title": "", "text": "NORTHROP, District Judge. This is an action under Section 205(g) (42 U.S.C.A. § 405(g)) of the Social Security Act, as amended, to review a “final decision” of the Secretary of Health, Education and Welfare disallowing the plaintiff’s claim for a period of disability and for disability insurance benefits pursuant to Sections 216 (i) (42 U.S.C.A. § 416 (i)) and 223 (42 U.S.C.A. § 423), respectively, of the Social Security Act, as amended. The Appeals Council, in denying formal review, sustained the decision of the Hearing Examiner. Therefore, it is the final decision of the Secretary, and all administrative remedies have been exhausted. This court, having carefully reviewed the record of the proceedings before the Hearing Examiner, having heard argument in open court, and having considered the briefs filed herein by the parties, concludes that the decision reached by the Hearing Examiner must be affirmed. He has applied the correct legal standards, and his decision is amply supported by the evidence presented. The scope of review and the judicial function in this type of case recently have been considered in Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962); Bradey v. Ribicoff, 298 F.2d 855 (4th Cir. 1962); and Bramlett v. Ribicoff, 298 F.2d 858 (4th Cir. 1962). Since each case depends upon its own facts, further citation of authority is unnecessary, The cIaimant.plaintiff) McPherson, at ^ tíme of the hearing on April 4> 1961> wag fi g old and had worked for the Western Electric company for forty_two years. There he had attained the position of supervisor on the installatíon flf central office telephone systemS; when, on March 9, 1959, he suffered a cerebral vascular attack. He has not worked since. McPherson has a high school education, , . ,, . , ’ and, m addition, he received management training while with the company. His condition was diagnosed by Dr. Barbara Huffish as “left hemianopsia”, caused by a brain lesion or thrombosis. Tiie plaintiff himself claims that his vision is Permanently impaired, that in order to see properly he must turn his bead flom s*de to s*de> be bas a" }, { "docid": "12187157", "title": "", "text": "court observed that the claimant was 58 years old with an eighth grade education and a work experience limited to farm work, oil well servicing, tank welding and car parts man; that he had no special training or skills of any kind and that his limited education and work experience brought him within the rule that “When a claimant’s former employment is the only type of work he is capable of performing, then ‘former work’ means ‘any work’ and the requirements of the Act are met.” Celebrezze v. O’Brient, 5 Cir., 323 F.2d 989, 992. Although the court did not reject the testimony of the consultant concerning the availability of suitable employment, it did take the view that claimant was not “required by the use of a catalog of the nation’s industrial occupations to go down the list and verbally negative his capacity for each of them or their availability to him as an actual opportunity for employment.” And see Butler v. Flem-ming, 5 Cir., 288 F.2d 591; Underwood v. Ribicoff, 4 Cir., 298 F.2d 850; Hayes v. Celebrezze, 5 Cir., 311 F.2d 648. We followed the same case law to arrive at the same conclusions in Celebrezze v. Warren, supra, and epitomized the rule gleaned from the cited cases as clearly establishing that “in determining whether a particular applicant is unable to engage in any substantial gainful activity, i. e. what he can do and what is available to him to do, consideration must be given to his age, education, training, experience and mental and physical capabilities.” And, following established case law, we rejected the notion that “pain must be endured” and that “no matter how severe or overpowering, it is not disabling.” We adopted Judge Brown’s language for the Fifth Circuit in Butler v. Flemming, supra, 288 F.2d 595, in which he said “Congress has in effect stated that if a person is unable except under great pain to engage in any substantial gainful activity in which he might be employable, taking into consideration his age, training, work experience and physical and mental capacities, he shall be deemed" }, { "docid": "22576904", "title": "", "text": "As this court recently stated in Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964) : “There really are two steps to a finding of disability: first a finding of a ‘medically determinable physical or mental impairment * * * ’ and, second, a finding that the impairment in fact causes an inability to ‘engage in any substantial gainful activity * * *.’ ” The present controversy revolves around the second step, and it is against its background that we examine the evidence of (1) objective medical facts, (2) expert medical opinion, (3) subjective evidence of pain and disability and, most important for purposes of this case, (4) claimant’s age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850, 851 (4th Cir. 1962). Born on June 21, 1911, and thus 49 years of age during the critical period here in question, Cyrus grew up on a farm, and has had a fourth grade education. In 1929, he left the farm and for a period of six months worked in a cotton mill, filling batteries. From late 1929 until 1942 he worked for the Craddock-Terry Shoe Company. His job consisted primarily of climbing up a ladder and bringing down shoe lasts from bins. Between 1942 and 1945 he was employed in Norfolk, Virginia, as an ordnance helper, an occupation requiring the handling of ammunition shells weighing 70 pounds or more. In September, 1945, he went to work for the Blue Ridge Manufacturing Company which employed him until 1956. At first he ran a banding machine, a job which required him to stand all day. From 1948 until 1954 he performed the duties of a garment cutter, operating an electric * cutting machine. Due to developing pain in his back and legs, he had difficulty standing and bending, as this job required. He underwent an operation on his back in 1955 to alleviate his condition and, upon his return to work late in that year, was assigned less strenuous duties as a clothing inspector. After a short time he had to leave this job because of inability to stand" }, { "docid": "21149335", "title": "", "text": "there for a woman who can do only what plaintiff can do? Abstract speculation by the Appeals Council as to a possibility of employment is not evidence which a claimant should have to refute; if it were, disability could never exist. To summarize, the courts have generally agreed that the test of a claimant’s disability or inability to engage in any substantial gainful activity is a subjective one, that is, what is reasonably possible in the light of the plaintiff’s physical and mental capacities and his education, training, and experience. It is not necessary that the plaintiff establish the complete absence of any opportunity for substantial gainful employment; he need only establish that he has become disabled from employment in any work or vocation in which he could profitably seek employment in the light of his physical and mental capacities and his education, training, and experience. Furthermore, it is clear that a plaintiff need not be totally helpless or bedridden in order to be considered disabled under the Social Security Act. Dunn v. Folsom, D.C.Ark., 166 F.Supp. 44, 48; Adams v. Flemming, D.C.Vt., 173 F.Supp. 873; Aaron v. Fleming, D.C.Ala., 168 F.Supp. 291; Hall v. Flemming, 6 Cir., 1961, 289 F.2d 290; Kemer v. Flemming, 2 Cir., 283 F.2d 916; Hier v. Ribicoff, D.C.Ill. 1961, 194 F.Supp. 22; Randall v. Flemming, D.C.Mich.1961, 192 F.Supp. 111; Snelling v. Ribicoff, D.C.E.D.S.C., 198 F.Supp. 432 (1961); Corbin v. Ribicoff, D.C.W.D.S.C., 204 F.Supp. 65 (1962); Butler v. Flemming, (CA 5) 288 F.2d 591 (1961); Underwood v. Ribicoff (CA 4) 298 F.2d 850 (1962); Klimaszewski v. Flemming, (D.C.E.D.Pa.1959) 176 F.Supp. 927; Ribicoff v. Hughes, 295 F.2d 833 (CA 8, 1961); Kohrs v. Flemming, 272 F.2d 731 (CA 8, 1959); Roberson v. Ribicoff (CA 6) 299 F.2d 761 (1962); King v. Fleming, 289 F.2d 808 (CA 6, 1961); Teeter v. Flemming, 270 F.2d 871 (CA 7, 1959). In my opinion the administrative decision in this case does not measure up to the adopted standards and tests of the Court of Appeals of the Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Circuits, nor is it in" }, { "docid": "3225653", "title": "", "text": "by claimant, and (4) claimant’s educational background, work history and present age. Underwood v. Ribicoff, supra. The record shows only the plaintiff’s own declaration that he was disabled within the meaning of the Social Security Act. We think such evidence, standing alone, is entitled to little weight. Furthermore, there is substantial evidence in the record on which the Secretary could have based his decision that the plaintiff was not precluded from engaging in all forms of substantial gainful work activity. While it is undoubtedly true that this plaintiff suffered from a slight mental impairment on or before March 31, 1950, yet it is well established that disability under the Social Security Act means the total inability to engage in any substantial gainful activity, including work of a less arduous nature than the applicant’s usual employment. Hicks v. Flemming, 302 F.2d 470 (5th Cir. 1962), cert. den. October 15, 1962, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106; Witherspoon v. Celebrezze, 328 F.2d 311 (5th Cir. 1964). Thus, considering all the medical evidence, as well as the testimony of the plaintiff, we cannot in good conscience say that the Secretary’s finding with respect to plaintiff’s condition is not supported by substantial evidence of record. Accordingly, after a searching review of the record as a whole, it is clear that a reasonable mind could very well have reached the same conclusion as did the Secretary, that is, the evidence failed to establish the claim asserted. Therefore, the defendant’s motion for summary judgment must be granted. . The term “disability” is defined in Sections 216 (i) and 223 of the Social Security Act, as amended, to mean: “(A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The 1967 Amendments to the Act imposed the additional requirement that “(A) an individual * * * shall be determined to be under a disability only if his" }, { "docid": "22917665", "title": "", "text": "“He is only 51 years old and it would be very possible that he would know how, if he could be trained, to perform a sedentary job adequately. Perhaps some standing job could be accomplished if it didn’t move him about too much”. “I believe that he could do light work which would not require him to walk or run, such as an occupation as an elevator operator or one in which walking is at a minimum”. The court below quoted these opinions in affirming the Secretary. . 176 F.Supp., at p. 932. This interpretation is in accord with the view of the statute taken by other Courts of Appeals. See Pollak v. Ribicoff, 300 F.2d 674, 677-678 (2 Cir., 1962); Underwood v. Ribicoff, 298 F.2d 850, 854 (4 Cir., 1962); Ferran v. Flemming, 293 F.2d 568, 570-572 (5 Cir., 1961); Hall v. Flemming, 289 F.2d 290, 291 (6 Cir., 1961); Ribicoff v. Hughes, 295 F.2d 833, 837 (8 Cir., 1961). The decision of the Court of Appeals for the Ninth Circuit in Graham v. Ribicoff, although it upholds the Secretary’s determination of no disability, adopts an ap- . proach to the statute consistent with that stated in Klimaszewski. See 295 F.2d 391, 394-395 (1961). HASTIE, Circuit Judge (dissenting). As a claimant for special status and relief before the Secretary of Health, Education, and Welfare, appellant Hodgson had the burden of proving that he was unable to engage in any substantial gainful activity by reason of medically determinable physical impairment. The medical testimony that Hodgson was able to do light work, considered in the light of his failure to introduce any evidence that the community offered no employment opportunities to men in his physical condition or that employers had refused to hire him because of his restricted physical capacity, provided a substantial basis for the Secretary’s finding adverse to the claimant. In such circumstances, I think it was the duty of the district court to sustain the Secretary’s determination and it is our duty to sustain the decision of the district court. I do not see how any other result" }, { "docid": "4064814", "title": "", "text": "admitted, however, that an employer would be reluctant to hire an epileptic and that plaintiff would need the aid of a third person in securing employment. In conclusion Dr. Martin stated: there are many jobs which do not require heavy lifting, which do not involve him in dangerous machinery, where he is on a high place and likely to fall. * * * * -X- •* * * * they are very available jobs, and epileptics can easily get jobs of this sort. Record, p. 109. The ultimate burden of proof here is, of course, upon the claimant to show disability. In carrying out this burden the claimant establishes a prima facie case of disability when he shows (1) that because of his impairment he can no longer pursue his usual occupation; and (2) that his age, lack of education and work experience, and other factors are superimposed upon the lack of employment. Haley v. Celebrezze, 351 F.2d 516 (10th Cir. 1965); Staab v. Ribicoff, supra; Paul v. Ribicoff, 206 F. Supp. 606 (D.Colo.1962). Also, the evidence presented by the claimant must be devoid of any indication that he could undertake other substantial gainful employment. Staab v. Ribicoff, supra; Paul v. Ribicoff, supra. Once a prima facie case has been established by the claimant, the burden of going forward shifts to the government. Plaintiff claims that he has presented a prima facie case, and hence the government was required to introduce substantial evidence on two points: (1) the ability of the plaintiff to perform gainful work, and (2) the availability of such work. Undoubtedly, the testimony of Dr. Case constituted substantial evidence that plaintiff was disabled. This, however, was not conclusive on the ultimate fact in issue. Finally, the decision had to be made by the Secretary based on all the evidence. 20 C.F.R. § 404.1526; Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962); Jacobson v. Flemming, 186 F.Supp. 936 (S.D.N.Y.1960). Where, as here, there is also medical testimony that the claimant is not totally disabled, and testimony of a vocational expert that the claimant’s condition does not prevent" }, { "docid": "22917664", "title": "", "text": "Hodgson “Was not under a disability” by the Pennsylvania State Board of Vocational Education on June 13, 1958, reaffirming an earlier decision to similar effect of May 15, 1957, but this fact, though in the record of this case, is not relevant here. . See “A Guide to the Evaluation of Permanent Impairment of the Extremities and Bach”, The Journal of the American Medical Association, February 15, 1958, Special Edition, p. 75. . The word employed is “salicylates”. We assume that the Hearing Examiner and the testifying doctors are referring to aspirin, a common name for acetylsalicylic acid. . Section 205(g) of the Act, as amended, 42 U.S.O.A. § 405(g) provides, inter alia, that “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * . In his decision, the Hearing Examiner stated merely that in his opinion “claimant is capable of useful unskilled work in many fields other than heavy labor”. In so doing, he referred to the following statements, made in medical reports concerning Hodgson: “He is only 51 years old and it would be very possible that he would know how, if he could be trained, to perform a sedentary job adequately. Perhaps some standing job could be accomplished if it didn’t move him about too much”. “I believe that he could do light work which would not require him to walk or run, such as an occupation as an elevator operator or one in which walking is at a minimum”. The court below quoted these opinions in affirming the Secretary. . 176 F.Supp., at p. 932. This interpretation is in accord with the view of the statute taken by other Courts of Appeals. See Pollak v. Ribicoff, 300 F.2d 674, 677-678 (2 Cir., 1962); Underwood v. Ribicoff, 298 F.2d 850, 854 (4 Cir., 1962); Ferran v. Flemming, 293 F.2d 568, 570-572 (5 Cir., 1961); Hall v. Flemming, 289 F.2d 290, 291 (6 Cir., 1961); Ribicoff v. Hughes, 295 F.2d 833, 837 (8 Cir., 1961). The decision of the Court of Appeals for the Ninth Circuit in Graham v." }, { "docid": "3225652", "title": "", "text": "of the objective medical evidence of record, this impairment on or prior to March 31, 1950 did not prevent all gainful work. In fact, this is confirmed by plaintiff’s employment in 1956 and 1957, when he had combined earnings of over $3,000.00 While this Court is fully aware that clinical medical reports are not necessarily dispositive of the question of a claimant’s disability, Dillon v. Celebrezze, 345 F.2d 753 (4th Cir. 1965), it is clear that such reports are essential to an obvious interrelation of the four elements of proof the fact finder must recognize in determining a claimant’s ability or inability to engage in any substantial gainful activity. Underwood v. Ribicoff, supra. This interrelation includes (1) the objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability as testified to by claimant, and (4) claimant’s educational background, work history and present age. Underwood v. Ribicoff, supra. The record shows only the plaintiff’s own declaration that he was disabled within the meaning of the Social Security Act. We think such evidence, standing alone, is entitled to little weight. Furthermore, there is substantial evidence in the record on which the Secretary could have based his decision that the plaintiff was not precluded from engaging in all forms of substantial gainful work activity. While it is undoubtedly true that this plaintiff suffered from a slight mental impairment on or before March 31, 1950, yet it is well established that disability under the Social Security Act means the total inability to engage in any substantial gainful activity, including work of a less arduous nature than the applicant’s usual employment. Hicks v. Flemming, 302 F.2d 470 (5th Cir. 1962), cert. den. October 15, 1962, 371 U.S. 868, 83 S.Ct. 132, 9 L.Ed.2d 106; Witherspoon v. Celebrezze, 328 F.2d 311 (5th Cir. 1964). Thus, considering all the medical evidence, as well" }, { "docid": "22094107", "title": "", "text": "The explicit congressional command is that the impairment must cause “inability to engage in any substantial gainful activity”. See Gotshaw v. Ribicoff, 4 Cir. 1962, 307 F.2d 840, 844; Pearman v. Ribicoff, 4 Cir. 1962, 307 F.2d 573, 574; and Adams v. Flemming, 2 Cir. 1960, 276 F.2d 901. In this case, as in all of these disability cases under the Act, the plaintiff asks the inevitable rhetorical question: What jobs are there ? For the Secretary, “What jobs are there” means, within the context of the Act, what kinds of work can the claimant perform, not what jobs are there available for him in Kosciusko, Mississippi. See Kerner v. Fleming, 2 Cir. 1962, 283 F.2d 916; Graham v. Ribicoff, 9 Cir. 1962, 295 F.2d 391; Ri-naldi v. Ribicoff, 2 Cir. 1963, 305 F.2d 548. In the light of this correct understanding of the law, the Secretary’s showing of O’Brient’s ability to perform light work of a various nature is all the answer he is required to make to the claimant. When a claimant’s former employment is the only type of work he is capable of performing, then “former work” means “any work” and the requirements of the Act are met. This was the situation in Ferran v. Flemming, 5 Cir. 1961, 293 F.2d 568; Butler v. Flemming, 5 Cir. 1961, 288 F.2d 591; Flemming v. Booker, 5 Cir. 1960, 283 F. 2d 321; Ribicoff v. Hughes, 8 Cir. 1961, 295 F.2d 833; Kohrs v. Flemming, 8 Cir. 1959, 272 F.2d 731; Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916. But impairment to carry on one’s former work is not enough in itself to satisfy the statutory definition of “any substantial gainful activity.” Thus in Hicks this Court pointed out that the word “any” includes former work and work of a different nature: “To establish a disability under 42 U.S.C.A. § 416 (i) a claimant must do more than show that he is unable to do his former work; he must be unable to perform any substantial, gainful work, including work of a physically or emotionally lighter type.” See" }, { "docid": "22320162", "title": "", "text": "to § 205(g) for further administrative action. The Council vacated its denial of review. Evidence from the files of the Metropolitan was obtained. A supplemental hearing was held in Omaha. The Appeals Council determined that still further medical evidence was necessary. Bolas was examined at government expense by three physicians who submitted written reports. Again the matter was referred to the referee so that oral testimony could be elicited from the physicians. Finally the Appeals Council on September 9,1960, issued a lengthy and comprehensive decision. It reached the following conclusion: “The Appeals Council agrees that the claimant has certain impairments similar to those of other persons his age that are the result of the natural aging process, no more and no less, but finds that such impairments either singly or in combination, are not of the type that preclude him either from engaging in his usual work or from engaging in any kind of substantial gainful activity.” This reference is obviously directed to the definition of “disability” in § 216 (i) (1), as amended, 42 U.S.C.A. § 416(i) d): “[T]he term‘disability’means * * inability to engage in any substam tial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration * * It is this ruling of the Appeals Council which was the “final decision of the Secretary”, Cody v. Ribicoff, 8 Cir., 1961, 289 F.2d 394, 395, which was reversed by the district court and which now reaches us on appeal almost eight years and four Secretaries after the claimant’s application was filed. Both sides stress the applicable legal standards. There is no real dispute as to these: 1. Bolas, technically, has the burden of establishing his claim. Kerner v. Flemming, 2 Cir., 1960, 283 F.2d 916, 921; Poage v. Ribicoff, E.D.Mo., 1962, 205 F.Supp. 938, 939; Blanscet v. Ribicoff, W.D.Ark., 1962, 201 F.Supp. 257, 260. 2. The Act is remedial and is to be construed liberally. Kohrs v. Flemming, 8 Cir., 1959, 272 F.2d 781, 736. 3. The Secretary’s findings" }, { "docid": "22296785", "title": "", "text": "Co. This is not to say, however, that he cannot engage in any substantial gainful activity. This court has held, however, that the test for disability consists of two parts: (1) a determination of the extent of the applicant’s physical or mental impairment, and (2) a determination whether that impairment results in an inability to engage in any substantial gainful activity. Stancavage v. Celebrezze, 323 F.2d 373 (3 Cir. 1963); Farley v. Celebrezze, 315 F.2d 704 (3 Cir. 1963) ; Hodgson v. Celebrezze, 312 F.2d 260 (3 Cir. 1963); Klimaszewski v. Flemming, 176 F.Supp. 927, 931 (E.D. Pa.1959). Thus in the case of an employee who can no longer perform the work he used to do but is not totally disabled the question is what can he do by way of any gainful employment. Kerner v. Flemming, 283 F.2d 916 (2 Cir. 1960). The words “any substantial gainful activity” must be read in the light of what is reasonably possible and not what is conceivable. Hodgson v. Celebrezze, supra. Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available. Roberson v. Ribicoff, 299 F.2d 761, 763 (6 Cir. 1962). In determining what kind of substantial gainful activity Janek can engage in, not only his physical disability must be considered but also such other meaningful factors as his age, education, training and work experience must be taken into account. Hodgson v. Celebrezze, supra. See also 20 C.F.R. § 404.-1502(b), as amended (1962). Thus the determination must be made from all of the facts of the case. The Hearing Examiner evidently based his denial of Janek’s claim on the fact that “[T]he claimant is a comparatively young man who suffers from a language barrier, and who finds it difficult to secure work and opportunities that might be his if there were no language barrier. «- * * [an(]] is undoubtedly troubled by his formidable financial needs, and unavailability of high grade employment which might satisfy those needs. * * ” The Hearing Examiner leaned heavily on the fact that Janek had had" }, { "docid": "358638", "title": "", "text": "in making a finding of plaintiff's ability or inability to engage in any substantial gainful activity, as laid down in the recent case of Underwood v. Ribicoff, [4 Cir.,]. 298 F.2d 850 (1962), are as follows: ‘(1) The objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses, and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability testified to by Claimant, and corroborated by his wife and his neighbors, (4) Claimant’s educational background, work history, and present age.’ ” In order for petitioner to be entitled to receive disability benefits, it must, of course, be found that she is not able to engage in “any substantial gainful activity.” But sporadic or infrequent activity does not necessarily establish ability to engage in substantial gainful activity. Substantial gainful activity means the performance of substantial services with reasonable regularity in some competitive employment or self employment. It relates to the range of activities that the individual can perform. Complete helplessness is not necessary to a finding of an allowable disability. Sebby v. Flemming, 183 F.Supp. 450 (D.C.1960). In Butler v. Flemming, 288 F.2d 591 (1961), the United States Court of Appeals, Fifth Circuit, stated: “Perhaps it is true that history teaches that ‘A man may have to endure discomfort or pain and not be totally disabled; much of the best work of life goes on under such disabilities * * *.’ But the purpose of much social security legislation is to ameliorate some of these rigors that life imposes. Congress has in effect stated that if a person in unable except under great pain to engage in any substantial gainful activity in which he might be employable, taking into consideration his age, training, work experience and physical and mental capacities, he shall be deemed to be disabled for the purposes of this Act.” In Page v. Celebrezze, 311 F.2d 757 (C.A.5 1963), the Court stated: “This notion that" }, { "docid": "22917661", "title": "", "text": "55-year-old man obtaining employment as an elevator operator is not shown to be a reasonable one. We conclude, therefore, first, that the Secretary has applied too strict a standard in this case. Not only must “[t]he capabilities of the individual * * be viewed in context with his own physical, educational and vocational background”, Sobel v. Flemming, 178 F.Supp. 891, 895 (E.D.Pa.1959), but also the fol lowing question must be asked and resolved: “[W]hat employment opportunities are there for a man who can do only what applicant can do ? Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available”. Kern-er v. Flemming, 283 F.2d 916, 921 (2 Cir., 1960). Second, when the record is tested by the principles set forth above, there fails to appear substantial evidence to support a finding necessary to the Secretary’s determination of no disability, viz., that there existed a reasonable opportunity for Hodgson to engage in substantial gainful employment. Neither the bare suggestion in a medical report that the claimant might be able to operate an elevator nor the less specific allusions in the reports to “a sedentary job”, “some standing job” and “one in which walking is at a minimum”' constitute such evidence. See Pollak v. Ribicoff, 300 F.2d 674, 678 (2 Cir., 1962); Roberson v. Ribicoff, 299 F.2d 761, 762-763 (6 Cir., 1962). Compare Graham v. Ribicoff, 295 F.2d 391, 394-395 (9 Cir., 1961). The judgment will be reversed and the case will be remanded with the direction to the court below to enter a judgment requiring the Secretary to determine whether Hodgson is able to engage in substantial gainful activity and is entitled to disability insurance benefits in the light of the principles enunciated in this opinion. . At the hearing Hodgson described his own work prior to his incapacity as: “ * * * brutal hard labor work, work in the mines and outside. I don’t know what they call it, the bull gang, all the heavy work, big heavy fellows, outside.” . A decision was rendered by the Hearing" } ]

[ { "docid": "10024740", "title": "", "text": "will be furloughed, but, on the contrary, expressly excepts those whose services may be needed — -“officers and men required for necessary guard details,” etc. A leave of absence or a furlough is a favor extended. A soldier can not have a furlough forced upon him. So long as he remains in the service he is entitled to rations and a resting place and medical attendance. No officer of the Government can authoritatively say to him, “Be gone for a month or two and take care of jmurself, and fail not to come back at the appointed time to resume jTour duty and get 3rour pay, or you will be arrested as a deserter.” The only manner in which the Government can release itself from its obligations to the soldier, be ho officer or enlisted man, is by setting him free — by discharging him from the service. For the purposes of this case it is immaterial whether an officer or soldier was on active duty or compulsory duty, or any kind of duty. If he was still in the service of the United States — still 'under the obligations of military law, and has been “honorably discharged”. — the act 26th May, 1900, gives him one month’s extra pay unless he received and accepted a “ furlough.” It has been suggested that these members of the First Ohio Volunteer Infantiy who were retained on duty in Cincinnati after the return of the regiment in September, 1898, wore retained at the place of their enrollment; and thejr being at their homes, or residences, and the duty trivial or nominal or perfunctory, it was the equivalent of a leave of absence or furlough. But the statute says nothing about homes or residences or equivalents. When a soldier receives a furlough he is for the time being his own master and the master of his own time, and is free to go where he pleases, and do what he pleases, owing no militaiy duty to the Government. It is not unlikely that in September, 1898, a great city was the last place" } ]

[ { "docid": "129590", "title": "", "text": "United States, 643 F.2d 481 (8th Cir. 1980). Rehearing en banc was granted. After hearing oral argument, we now affirm the District Court. I. THE FACTS The accident that caused Private Miller’s death occurred on June 23, 1977. On that day and at all relevant times he was a member of the United States Army stationed at Fort Wainwright, Alaska. On June 23 Private Miller was present and accounted for. After normal duty hours, with the knowledge and permission of his superior officers, he was employed for part-time work by one George Rodman, a supervisor for Northside-Danzi Construction Co. The work was done on the post and consisted of putting up scaffolding poles for on-base residential housing. Miller was not on leave or on pass, and could have been called to perform military duties at any time. The work had been going on for some time after normal duty hours each day. Plaintiffs claim, Complaint H 7, D.R. 2, that Private Miller’s death occurred when an aluminum ladder with which he was working came in contact with an uninsulated electric wire owned and controlled by the Department of the Army. They allege a number of particulars in which the United States (presumably acting through Miller’s commanding officer) was negligent, Complaint 19, D.R. 2, including, for example, the failure to de-energize the electric line in question. II. THE FERES DOCTRINE In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held, without dissent, that no action would lie under the Federal Tort Claims Act where the “claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces,” id. at 138, 71 S.Ct. at 155. In Feres, the plaintiff’s decedent had died when the barracks in which he was sleeping, “while on active duty,” id. at 137, 71 S.Ct. at 155, were destroyed by fire. The Supreme Court explained: We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is" }, { "docid": "22904128", "title": "", "text": "that the plaintiff was engaged in activity incident to service at the time, although this fact alone is not dispositive. See Hand v. United States, supra; Downes v. United States, supra. The Court must consider the totality of the circumstances surrounding the injury and distinguish between “those cases involving activities arising from life on the military reservation and those in which the presence on the base has little to do with the soldier’s military service.” Parker v. United States, 611 F.2d 1007 (5th Cir. 1980). In the Parker case, this Court held that a serviceman’s claim under the Federal Tort Claims Act was not foreclosed even though the injury occurred on a military base where the function the plaintiff was performing at the time of his death was not related to his military status and did not arise from his life on the base. The court allowed Parker to maintain his suit under the Act since he was on a four day pass and merely driving through the base while tending to the purely personal business of mov ing his family to a new home at the time the accident occurred. In contrast, Stanley was not on a pass and was not tending to purely personal business at the time this alleged injury arose. At the time Stanley was given LSD, he was a Master Sergeant in the Army who had volunteered to participate in an experimental program in lieu of his regular duties. The experiment was conducted on an Army base by and for the benefit of the Army. Thus, the relationship between Stanley and the allegedly negligent individuals stemmed from their official military relationship. See Lee v. United States, 261 F.Supp. 252, 256 (C.D.Cal. 1966), rev’d 400 F.2d 558 (9th Cir. 1968), cert. denied, 393 U.S. 1053, 89 S.Ct. 691, 21 L.Ed.2d 695 (1969). See also, Camassar v. United States, 400 F.Supp. 894 (D.Conn. 1978), aff’d per curiam, 531 F.2d 1149 (2d Cir. 1976). Stanley had been informed that he was free to leave the testing program at any time; however, this freedom appears to have been restricted" }, { "docid": "10018008", "title": "", "text": "of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission. A Government owned and operated vehicle collided with him. Brooks’ father, riding in the same car, recovered for his injuries and the Government did not further contest the judgment but contended that there could be no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks’ relationship while on leave was not analogous to that of a soldier injured while performing duties under orders. “We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. We do not think that Congress, in drafting this Act, created a new cause of action dependent on local law for service-connected injuries or death due to negligence. We cannot impute to Congress such a radical departure from established law in the absence of express congressional command.” (Emphasis supplied.) Since, therefore, we find that Master Sergeant Snyder may sue under the Tort Claims Act, we turn to an analysis of his claim for personal injuries and for the destruction of his home and personal property. He makes no claim for hospital and medical expenses, since. these were provided by the Government at no cost to him. Also, he makes no claim for loss of earnings from April 8, 1951, up to the present time, since he has been drawing Air Force pay during the entire period. First, as to Snyder’s personal injuries, the credible medical testimony shows that he suffered multiple lacerations of the face and neck, and that his right shoulder and left leg were burned, leaving permanent scars. The credible medical testimony also shows that Snyder is psychoneurotic as a result of the airplane crash, and he is said to have a 30% mental disability. The" }, { "docid": "23404382", "title": "", "text": "2054. . The veterans’ benefit act requirement that the injury occur “in line of duty,” 38 U.S.C. § 101(16) (1976), is deemed to be met if it occurs “on active duty or on authorized leave . . . .” 38 U.S.C. § 105(a) (1976). Parker would have been eligible for veterans benefits even if he had been injured by a private car, on a private road, while on furlough. . Maintenance of the Parker suit, for instance, might require Specialist Peters to testify, but we doubt he had orders to cross the road at the time of the collision. The army apparently does not dispute that negligence occurred here, and Peters is not subject to the tension that could occur if a direct suit for negligence were possible. See 28 U.S.C. § 2679(b) (1976) (FTCA remedy is exclusive of any other against federal employee or his estate). . This result would ensue even in situations which do not contain the policy considerations of the Feres doctrine. An Air Force sergeant does not have an FTCA action when injured while on a military mission when a naval officer negligently drives into the rearend of the private car in which the claimant is riding. Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961). . “Furlough” or “leave” is generally for a longer period and is charged against the soldier’s record. A “pass” is a discretionary time off privilege granted by the supervising officer and not charged against the record. In either case, the service member can be recalled to work. Since 1972 formal passes have not been necessary for service members not on their regular duty hours. Therefore, “off-duty” service members who need not report until the next day, now technically have the same status as members on “pass.” See Zoula v. United States, 217 F.2d 81, 82-83 n.1 (5th Cir. 1954); Watkins v. United States, 462 F.Supp. 980, 986-89 (S.D.Ga.1977), aff’d per curiam, 587 F.2d 279 (5th Cir. 1979). . Much has been made of Parker’s being on “active duty,” subject to recall, despite his four-day release from duty. The Government" }, { "docid": "4241256", "title": "", "text": "69 S.Ct. 1532, 93 L.Ed. 1757, where the “ ‘line of duty’ ” argument is considered. The Supreme Court has stated that while on leave, a soldier “is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” United States v. Williamson, 23 Wall. 411, 415, 90 U.S. 411, 415, 23 L.Ed. 89. The “leave” is a favor extended “for his sole accommodation” to permit him to “enjoy a respite from military duty.” Cf. Foster v. United States, 43 C.C. 170, 175. And see Hunt v. United States, 38 C.C. 704, 710. When a soldier is “off duty” his conduct is “subject to the control of no one but himself.” United States v. Sharpe, 4 Cir., 189 F.2d 239, 240, 241; United States v. Eleazer, supra, 177 F.2d at page 916; and see United States v. Williamson, supra. And the application of the doctrine of respondeat superior can no more suffice to make the Government responsible for the negligence of a soldier who is absent from his post of duty on a pass than it would suffice to impose liability for the acts of a soldier while AWOL. See United States v. Sharpe, supra, 189 F.2d at page 241. When he is off duty, he is “on his own.” Rutherford v. United States, D. C., 73 F.Supp. 867, 868, 869, affirmed per curiam in 6 Cir., 168 F.2d 70. A navy petty officer was here involved. Holding was that this enlisted man was not “acting within the scope of his office or employment” unless he was “ ‘acting in line of [naval] duty’ ” at the time of the accident. The above noted cases cited by ap-pellee serve to lend emphasis to the views we have expressed. We have examined the entire record with care and being convinced that a proper result was reached by the trial court its judgment must be, and is, affirmed." }, { "docid": "17976175", "title": "", "text": "leave or off duty, alternatively (1) if the soldier is injured taking advantage of military privileges generally restricted to the military and not generally permitted civilians, or (2) if the soldier is injured while under military jurisdiction, then (whichever way the rule is phrased) he will be barred from suing the Government. In the instant case, Captain Herreman was fatally injured while taking advantage of special travel privileges granted military personnel. While taking advantage of this privilege, it is undisputed that he was under military jurisdiction. The fact that he was not on active duty or that he was pursuing purely pleasurable activities is of no . . . relevance . . . The outer dimensions of this problem are measured by two Supreme Court cases decided in successive years. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), two brothers who were then members of the armed forces of the United States on furlough, driving their own automobile along a highway, collided at an intersection with a United States Army truck. The Court held that their injuries were “not incident to their service” and that their claims were therefore cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2674. In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), three servicemen while on active duty and not on furlough sustained injury due to the negligence of others in the armed forces. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159. The issue in this ease is whether Herreman’s activity at the time he was killed in the crash was incident to his service. At the time of his death Herreman was a member of the Wisconsin Army National Guard with the rank of captain, assigned to the Selective Service Section, Headquarters and Headquarters Detachment at Madison, Wisconsin. In accordance with 10 U.S.C. § 3351(a)," }, { "docid": "13472670", "title": "", "text": "Cir.1980). Anderson’s alleged injury, therefore, is not necessarily “incident to service” simply because, but for his outstanding military obligation, he would not have been arrested AWOL. In this case, the facts that are usually considered indicative of “activity incident to service” are simply not present. See, e.g., Miller v. United States, 643 F.2d 481, 494 (8th Cir.1981) (in applying the Feres doctrine, the court considered the claimant’s duty status, where the injury occurred, and what the claimant was doing at the time he was injured). Anderson had not reported for active duty, although he was ordered to do so. The incident did not occur on a military base. Anderson was arrested in the front yard of his private home. He was not availing himself of a privilege related to or dependent upon military status. He was not involved in any military mission or acting under the compulsion of military orders. Nor was he subject to the direct control and authority of his military superiors. On the contrary, the very purpose of the arrest was to establish that control. The fact that Anderson had been ordered to active duty should not transform his alleged injury into one received “incident to service.” Anderson never reported for active duty. Although his absence is unauthorized, his situation is akin to that of those servicepersons on leave, pass, or furlough, whom courts frequently permit to proceed under the FTCA. See, e.g., Mills v. Tucker, 499 F.2d 866 (9th Cir.1974) (survivors of a serviceman, who was on furlough when he was killed in a traffic accident on a navy-maintained road, could maintain an FTCA action). In all these cases, the servi-ceperson’s absence, authorized or unauthorized, essentially eliminates that “peculiar and special relationship of the soldier to his superiors * * * ” which renders the maintenance of FTCA actions by servicepersons disruptive to military discipline. See, e.g., United States v. Carroll, 369 F.2d 618, 621 (8th Cir.1966). Not only do the facts contraindicate application of the Feres doctrine, but the rationale behind the judicial exception does not support its extension to this case. As previously mentioned," }, { "docid": "19314153", "title": "", "text": "Furthermore, under the Uniform Code of Military Justice, 10 U.S.C. § 911, Malone was accountable to the Air Force for all his actions, including the driving of automobiles, from the date of his entrance into the service upon active duty. Plaintiff contends secondly that defendant, at the time and place of the accident, was acting within the scope of his employment. Relying upon Great American Tea Co. v. Van Buren, supra, plaintiff argues that while Malone was pursuing his own purposes in travelling to Muncie, Indiana, the overall purpose of his travelling was to change, pursuant to military orders, his permanent duty station. It is undisputed that James Malone was employed by the United States Air Force at the time of the accident and that he was subject to the control of his superior officers. Under Indiana law, however, the right of control does not subject a master to liability for acts or omissions of a servant unless the servant is engaged, directly or indirectly, in the master’s business. Upon the facts in this case, the Court concludes that Malone was not, at the time of the accident, acting in the line of duty. At the time of the accident Malone was on leave pursuing his private business and affairs. He was not yet en route to his new duty station. A service man on leave or on pass cannot, normally, be said to be acting within the scope of his employment. He is in a similar position to the private employee during the latter’s non-work or vacation. His activities at such times consist of his personal affairs, not usually connected with the business of the employer. Accord: United States v. Eleazer, 177 F.2d 914 (4th Cir. 1949); United States v. Sharpe, 189 F.2d 239 (4th Cir. 1951); Williams v. United States, 215 F.2d 800 (9th Cir. 1954); Mason & Dixon Lines v. Shore, 409 F.Supp. 1127, 1128 (E.D.Tenn.1975); see, United States v. Williamson, 23 Wall 411, 90 U.S. 411, 415, 23 L.Ed. 89 (1874). See also, 1 ALR Fed. 563. For the reasons stated herein, the plaintiffs’ motion for" }, { "docid": "4241255", "title": "", "text": "activities which have relation to appellant’s basic premise that since “entertainment” is essential to a soldier’s “morale,” Seabourn’s joy ride was not only within the legitimate scope of his employment, but (under our Mur-phey decision) must be regarded as an activity which was in line of “military duty.” A brief reference to some of these cases is justified. A case presenting a situation somewhat comparable to one in the case at bar is King v. United States, 5 Cir., 178 F.2d 320, certiorari denied 339 U.S. 964, 70 S.Ct. 998, 94 L.Ed. 1373. The “ ‘line of duty’ ” language was used to “more correctly” describe the conduct of military personnel in acting for the Government. United States v. Eleazer, 4 Cir., 177 F.2d 914, 918, certio-rari denied 339 U.S. 903, 70 S.Ct. 517, 94 L.Ed. 1333. “Congress was undertaking with the greatest precision to measure and limit the liability of the Government, under the doctrine of respondeat superior”. United States v. Campbell, 5 Cir., 172 F. 2d 500, 503, certiorari denied 337 U.S. 957, 69 S.Ct. 1532, 93 L.Ed. 1757, where the “ ‘line of duty’ ” argument is considered. The Supreme Court has stated that while on leave, a soldier “is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” United States v. Williamson, 23 Wall. 411, 415, 90 U.S. 411, 415, 23 L.Ed. 89. The “leave” is a favor extended “for his sole accommodation” to permit him to “enjoy a respite from military duty.” Cf. Foster v. United States, 43 C.C. 170, 175. And see Hunt v. United States, 38 C.C. 704, 710. When a soldier is “off duty” his conduct is “subject to the control of no one but himself.” United States v. Sharpe, 4 Cir., 189 F.2d 239, 240, 241; United States v. Eleazer, supra, 177 F.2d at page 916; and see United States v. Williamson, supra. And the" }, { "docid": "22247968", "title": "", "text": "to his Service, we followed the Supreme Court’s lead in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which— while holding that three servicemembers on active duty could not recover under the Federal Tort Claims Act — distinguished an earlier case in this manner: The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission. A Government-owned and operated vehicle collided with him. Brooks’ father, riding in the same car, recovered from his inju ries and the Government did not further contest the judgment but contended that there could be no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks’ relationship while on leave was not analogous to that of a soldier injured while performing duties under orders. Id. at 146, 71 S.Ct. at 159 (emphasis supplied). No matter how long his period of leave or how distant he may be from military installations while on leave, a servicemember is responsible to be fit for duty when he returns from leave. In this connection, we recall the comment in Trottier that “[ijndeed, in many instances the drugs will enter the military installation in their most lethal form — namely, when they are coursing through the body of a user.” Id. at 349. We are convinced that, even when a service-member uses a psychoactive drug in private while he is on extended leave far away from any military installation, that use is service-connected, if he later enters a military installation while subject to any physiological or psychological effects of the drug. Such use falls outside the scope of the exception mentioned in the Trottier footnote. According to the evidence received during the Article 39(a) session, a trace of THC was present in Murray’s urine specimen when he reported to the Philadelphia Naval Base. The record does not make clear what are the physiological or psychological effects, if any, of the" }, { "docid": "12276711", "title": "", "text": "pass or leave, one in military service “is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender Ms leave if be chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” United States v. Williamson, 23 Wall. 411, 415, 90 U.S. 411, 415, 23 L.Ed. 89. (We assume that at any time during leave on a pass, a member of the army could be recalled for miltary duty.) And see Hunt v. United States, 38 Ct.Cl. 704, 710, and Foster v. United States, 43 Ct.Cl. 170, 175, where the purport of the court’s holdings was that a “leave” from service duties is for the sole accommodation of the recipient of the leave privilege; that when a soldier receives a furlough he is for the time being his own master and the master of his time, and is free to go where he pleases, and do what he pleases, owing no military duty to the Government." }, { "docid": "12276710", "title": "", "text": "and whether his wild drive “incidentally or indirectly” benefited his employer. To agree with appellant’s theory would compel us to hold that (under California law) Seabourn’s drunk drive for his own recreation somehow and in some wholly undisclosed manner conferred some direct or indirect benefit on the United States, a conclusion repudiated by the dear facts of this case. . That Seabourn was away from Ms army post on a pass and free of any military duty at the time he injured appellant, is not disputed. His' then relationship to the Government while on this pass or ofE-duty status “was not analogous to that of a soldier injured while performing duties under orders.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152. And the Court there added that “without exception, the relationship of military personnel to the Government has been governed exclusively by federal law.” (Emphasis supplied.) A soldier who is off duty or on a pass is not engaged in the business of the United States. While on pass or leave, one in military service “is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender Ms leave if be chooses. If he reports himself at the expiration of his leave, it is all that can be asked of him.” United States v. Williamson, 23 Wall. 411, 415, 90 U.S. 411, 415, 23 L.Ed. 89. (We assume that at any time during leave on a pass, a member of the army could be recalled for miltary duty.) And see Hunt v. United States, 38 Ct.Cl. 704, 710, and Foster v. United States, 43 Ct.Cl. 170, 175, where the purport of the court’s holdings was that a “leave” from service duties is for the sole accommodation of the recipient of the leave privilege; that when a soldier receives a furlough he is for the time being his own master and the master of his time, and is free to go where he pleases, and do what he pleases, owing no military duty to" }, { "docid": "13600391", "title": "", "text": "it comes within the Georgia rule that “If an automobile is being negligently operated by a servant while he is at liberty from his master’s service and is pursuing his own ends exclusively, the master is not responsible for any damage thus occasioned, but the rule is otherwise where the vehicle is being used for the purposes of the master and in the scope of the driver’s general employment, notwithstanding it is also being used in part for the accommodation of the driver.” Davies v. Hearn, supra, 164 S.E. at page 275. See also, Evans v. Caldwell, 52 Ga.App. 475, 184 S.E. 440. This latter facet of the question has some of the cut of a “deviation” case not here involved at all, but its only effect is to soften the requirements of the inquiry into the nature and purpose of the travel. It need not be shown that the sole purpose of the use of the employee’s own automobile was the furtherance of the employer’s business. Thus it is controlling that at the time of this collision, Capt. Westcott was performing a specific duty which had been assigned him — to travel to Fort Sam Houston. In executing this order' to proceed, he made use of his private automobile with the express authority of the Army. For this the Army bore the expenses which were “necessary in the military service.” In so doing he was not going to work, he was then engaged in the performance of one of the very duties specifically assigned to him, receiving Army pay, subject to military discipline and not on leave. His only choice was the, immaterial one of route and means of travel. In this regard, the “going to work” cases are distinguished in Lewis v. Miller Peanut Co., supra, on the ground that the employee has not yet commenced his duties while en route to work. That is, he is not yet doing that which he has been ordered to do. A further distinction has been articulated in United States v. Kennedy, 9 Cir., 230 F.2d 674, that the “going to" }, { "docid": "11631285", "title": "", "text": "a Government vehicle where the accident has nothing to do with the service career of the injured person. Plaintiff contends that the case of Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 is controlling here rather than the Feres case. In the Brooks case the plaintiff serviceman was on furlough and involved in an accident on a public highway when his private automobile was struck by a United States Army vehicle being negligently operated by a Government employee; in Feres, plaintiff was off duty and not undertaking any military missions and died in a fire in barracks on the military reservation. The evidence in the present case indicated that plaintiff was off duty from his assignment with the United States Army Garrison. His last military duties were performed at 5:00 p. m. on Friday, January 20, 1961, and he was not to report back to duty until Monday morning, January 23, 1961. The accident occurred on Saturday night on a boulevard on the Fort Bragg reservation leading out to a public highway. There are a number of cases allowing plaintiffs to recover under the Federal Tort Claims Act where the plaintiff was on “liberty pass”. Snyder v. United States (1953, D.C.Md.) 118 F.Supp. 585; or on “shore leave”. Brown v. United States (1951, D.C.W.Va.) 99 F.Supp. 685; or “on pass”. Knecht v. United States (3 Cir., Pa.1957) 242 F.2d 929; or “on furlough”, Barnes v. United States (1952 D.C.Ky.) 103 F.Supp. 51. These cases raise the question as to what type “off duty” arrangement Nowotny was under in the instant case. He was technically not “on pass” or “on leave” but was apparently off duty from Friday until Monday morning. The available facts of this case, at this point, do not fully show the nature of the duty relationship, and therefore it is not possible to determine whether Nowotny was actually injured by the Government agent “incident to his service” in the light of these cases. In Rosen v. United States (1954 D.C. N.Y.), 126 F.Supp. 13 the court said, “whether a member of the" }, { "docid": "23404383", "title": "", "text": "action when injured while on a military mission when a naval officer negligently drives into the rearend of the private car in which the claimant is riding. Callaway v. Garber, 289 F.2d 171 (9th Cir. 1961). . “Furlough” or “leave” is generally for a longer period and is charged against the soldier’s record. A “pass” is a discretionary time off privilege granted by the supervising officer and not charged against the record. In either case, the service member can be recalled to work. Since 1972 formal passes have not been necessary for service members not on their regular duty hours. Therefore, “off-duty” service members who need not report until the next day, now technically have the same status as members on “pass.” See Zoula v. United States, 217 F.2d 81, 82-83 n.1 (5th Cir. 1954); Watkins v. United States, 462 F.Supp. 980, 986-89 (S.D.Ga.1977), aff’d per curiam, 587 F.2d 279 (5th Cir. 1979). . Much has been made of Parker’s being on “active duty,” subject to recall, despite his four-day release from duty. The Government admits, however, that even soldiers on furlough can be recalled, yet those soldiers have an FTCA action if injured. We find the “active duty” distinction unpersuasive. See Hand v. United States, 260 F.Supp. 38, 41 (M.D.Ga. 1966)." }, { "docid": "3265972", "title": "", "text": "its similar facts, and held for the plaintiff. In Hand v. United States, 260 F.Supp. 38 (M.D. Ga. 1966), the plaintiff was on a 24-hour pass and was traveling from his off-base residence to an off-base bird hunt when his vehicle collided with an Army vehicle. The collision occurred on the portion of a through public highway which traversed the military base where the plaintiff was stationed. The court applied Brooks, holding that a pass was equivalent to a furlough: “There is no difference in the freedom which the man enjoys. In both instances the man is relieved from military duty during the period specified.” Id. at 41. In both of plaintiff’s cases, the serviceman was on a pass. Moreover, the collision in Knecht did not occur on a military reservation. In the present case, the plaintiff’s decedent was not on a pass or on leave and was injured on base. No court has ever avoided Feres on such facts. Plaintiff argues that the “pass” cases should nevertheless apply, because of intervening changes in Army practices. Plaintiff contends that outside of duty hours, a soldier is now free to leave base without a pass and without disclosing his destination. Plaintiff in effect contends that there is a new status, “off duty,” which informally allows the serviceman the same freedom as a formal pass. In support, plaintiff offers the deposition of Master Sergeant Jackie L. Godwin, who was First Sergeant of the decedent’s company. Sergeant Godwin explained that prior to June, 1972, a soldier at Fort Gordon needed to be on leave or in possession of a liberty pass in order to leave the base. The difference was that soldiers accrued thirty days’ leave per year, while a liberty pass was purely a privilege administered by thé company commander. A soldier’s leave was debited to his annual account, while his pass was not. Liberty passes were also limited as to duration and usually as to distance. The soldier on pass had to sign a register indicating his destination, so that he could be contacted in case his pass was revoked and" }, { "docid": "22262390", "title": "", "text": "Mr. Justice HUNT delivered the opinion of the court. The argument against the allowance of full pay is based upon the act of March 3d, .1863, which provides “ that any officer absent from duty with leave, except from sickness or wounds, shall during his absence, receive half of the pay and allowances prescribed by law, and no more.” Captain Williamson, it is said, was, during the period in question, absent from duty with leave, being neither sick nor wounded, and hence, it is said, can receive but half-pay, however that absence might have been caused. This argument is unsound. The distinction between the case of an officer “ absent from duty with leave” and that of an officer ordered to proceed to a particular place and there “to await orders, reporting thence by letter to the Adjutant-General of the Army and to these headquarters,” is too plain to require much comment. While absent from duty “ with leave,” the officer is at liberty to go where he will during the permitted absence, to employ his time as he pleases, and to surrender his leave if he chooses.- If he reports himself at the expiration of his leave, it is all that can be asked of him. The obligations of an officer directed to proceed to a place specified, there to await orders, are quite different. It is his duty to go to that place and to remain at that place. He cannot go elsewhere; he cannot return until ordered. He is as much under orders, and can no more question the duty of obedience than if ordered to an ambush to lie in wait for the enemy, to march to the front by a particular direction, or to the rear by a specified time. The authority to give leave of absence is committed by law to particular persons; the mode of making the application for leave is pointed out and the maximum of its duration is prescribed. A department commander can grant leave of absence for a period not exceeding sixty days. Applications for leave exceeding four months must" }, { "docid": "129603", "title": "", "text": "reasons for the basic doctrine forbidding suits by members of the armed forces for injuries occurring while on duty. The Court repeated that the relationship between the Government and members of its armed forces is distinctively federal in character, that the Government’s liability to members of the armed forces should not depend on the fortuity of where the soldier happened to be at the time of the injury, that a statutory no-fault compensation scheme providing benefits for servicemen injured in the line of duty had been created by Congress, and that the relationship of a soldier to his superiors was peculiar and special. These reasons apply to bar plaintiffs’ claim here. Private Miller was on active duty; he was not on leave, pass, or furlough; the injury occurred on a military base to which he was assigned and the work he was doing, though not under the immediate supervision of his military superiors, was related to the military mission of the base, since it involved construction of residential quarters to be owned by the Government and located on the base. Although he had been given permission by his military superiors to work at a part-time job during off-duty hours, he remained at all times subject to immediate recall for military duty. Like all soldiers, he was at a particular post not because he had chosen it, but because of his orders. His survivors are entitled to compensation under the applicable acts of Congress, which require no showing of fault or negligence. Plaintiffs’ attempt to avoid the force of these principles by characterizing Private Miller as a “loaned employee,” subject to the control, not of his military superiors, but of Northside-Danzi, his part-time and temporary employer. We cannot agree that the “loaned employee” doctrine, whatever its effect for tort or workers’ compensation purposes, makes any difference in the present context. The part-time job was simply with Private Miller chose to do during off-duty hours, as plaintiffs in other cases, cited above, chose to repair an automobile, take a drink, go swimming, or engage in other personal business. Certainly work on residential" }, { "docid": "13472671", "title": "", "text": "establish that control. The fact that Anderson had been ordered to active duty should not transform his alleged injury into one received “incident to service.” Anderson never reported for active duty. Although his absence is unauthorized, his situation is akin to that of those servicepersons on leave, pass, or furlough, whom courts frequently permit to proceed under the FTCA. See, e.g., Mills v. Tucker, 499 F.2d 866 (9th Cir.1974) (survivors of a serviceman, who was on furlough when he was killed in a traffic accident on a navy-maintained road, could maintain an FTCA action). In all these cases, the servi-ceperson’s absence, authorized or unauthorized, essentially eliminates that “peculiar and special relationship of the soldier to his superiors * * * ” which renders the maintenance of FTCA actions by servicepersons disruptive to military discipline. See, e.g., United States v. Carroll, 369 F.2d 618, 621 (8th Cir.1966). Not only do the facts contraindicate application of the Feres doctrine, but the rationale behind the judicial exception does not support its extension to this case. As previously mentioned, Anderson never established that “peculiar and special relationship of the soldier to his superiors * *.” In addition, the Veterans’ Benefits Act, although an adequate substitute for tort liability in some situations, offers no compensation to Anderson. Finally, because Anderson never reported for active duty, his “relationship” with the government as a member of its armed services can scarcely be characterized as such, much less as a “distinctively federal” relationship. This is not a situation where, if allowed to proceed under the FTCA, a serviceperson would be involuntarily subjected to the law of the jurisdiction where he or she was required to live. Anderson was at his own home in the jurisdiction of his own choosing at the time of his alleged injury. The law of that jurisdiction, therefore, should apply to Anderson’s tort claim as it does in any FTCA action. I recognize that Anderson technically was a member of the armed services. His enlistment contract had not terminated at the time of his arrest and his return to “civilian” status did not occur" }, { "docid": "6996803", "title": "", "text": "the scope of his employment was to be resolved with reference to the agency law of the place of the accident. The four cases involving military personnel driving their own automobiles which have arisen in this circuit, three of which the Government here relies upon, were all decided before Williams. The first, United States v. Eleazer, 4 Cir., 1949, 177 F.2d 914, involved a Marine lieutenant who was ordered to report to a new duty station, but was given about two weeks leave before being required to report. While on leave, driving his own automobile towards his home in Atlanta, Georgia, he crashed into another car in North Carolina. This court refused to hold the Government liable under the Federal Tort Claims Act. Although the decision there was clearly eorrect under the circumstances, as the lieutenant was on leave and travelling to his home for his own purposes, it is true that there is language in the opinion emphasizing the fact that he was driving his own vehicle and that the Government had no control over the manner in which he was driving. Such language, however, must be considered in its factual context. The present case does not involve a soldier on leave but, rather, one travel-ling directly from one duty station to another, under specific directions to do so, and using an authorized mode of transportation. He had no personal motive in driving to Canada but was ordered to make the trip, and was allowed only sufficient time to drive to Ottawa and no free time for any side trips. United States v. Sharpe, 4 Cir., 1951, 189 F.2d 239, presented a similar situation. A soldier who had been ordered to move from one Army camp to another obtained permission to drive his own auto-mobile rather than travel by a truck convoy which was transporting other soldiers wh-o had likewise been ordered to make the trip. He was given a pass, was not required to report for duty at the new camp until the expiration of the pass, and his time was his own. He received no allowances for" } ]

[ { "docid": "14202012", "title": "", "text": "any objection to improper venue by failing to timely raise this issue in the court below. As the Government points out, Defendant did not specifically identify venue as an issue in his initial motion for judgment of acquittal at the close of the Government’s proofs. Instead, his counsel generally stated: Very briefly, Your Honor, I make a motion for judgment of acquittal on both counts of the indictment due to the failure of the government to make out each and every element of a prima facie case of each and every charge. (J.A. at 258.) Nor did defense counsel mention venue after the close of all the evidence, stating simply that “I need to renew my motion.” (J.A. at 284.) Rather, the first explicit reference to venue is found in a memorandum in support of Defendant’s post-trial renewal of his motion for judgment of acquittal. (See J.A. at 73.) The Government argues that this post-trial objection came too late to preserve this issue on appeal. The law of this Circuit indicates otherwise, though not definitively. To be sure, while Defendant challenged the Government’s purported failure to “make out each and every element” of the charged offenses, (J.A. at 258), this cannot be viewed as a direct challenge to venue, because venue is not properly considered a true “element” of a criminal offense. See United States v. Scaife, 749 F.2d 338, 346 (6th Cir.1984); United States v. Branan, 457 F.2d 1062, 1065-66 (6th Cir.1972). Nevertheless, this Court has indicated, albeit only in dicta, that a general challenge to the Government’s proofs in a Rule 29 motion for judgment of acquittal suffices to preserve the issue of venue, and that only a more specific Rule 29 motion operates to waive all grounds not specified. See United States v. Dandy, 998 F.2d 1344, 1356-57 (6th Cir.1993), cert. denied, 510 U.S. 1163, 114 S.Ct. 1188, 127 L.Ed.2d 538 (1994). In stating this view, we quoted with approval from United States v. Rivera, 388 F.2d 545, 548 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396 (1968), which distinguished between general" } ]

[ { "docid": "23353623", "title": "", "text": "government’s failure to provide any substantial evidence to support the alleged venue. In the latter circumstances, the Sixth Circuit found the objection waived, United States v. McMaster, 343 F.2d 176, 181 (6th Cir.), cert. denied, 382 U.S. 818, 86 S.Ct. 42,15 L.Ed.2d 65 (1965); cf. United States v. Michelson, 165 F.2d 732, 734 (2d Cir.) (dictum), aff'd, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). The Ninth Circuit has found waiver where the defendant made a motion to acquit on specific grounds and did not mention venue. Gilbert v. United States, 359 F.2d 285, 288 (9th Cir.), cert. denied, 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966); United States v. Brothman, 191 F.2d 70, 72-73 (2d Cir.1951) (dictum). We think this the proper result. It is not unreasonable to expect the defendant to make some reference to the venue point in order to save his objection for appeal. Where he moves to acquit without specification, we might assume venue to be included among his unar-ticulated disagreements with the conduct of the case, but where he does specify grounds for the motion and omits mention of venue we must conclude that he cannot be considered to have raised a question concerning the place of trial. Since there can be no doubt that Rivera did move for acquittal on specific grounds without mention of improper venue at that time, he waived any objection he may have had. United States v. Rivera, 388 F.2d 545, 548 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396 (1968). From the record,- it appears that defendant’s Rule 29 motion did not challenge the sufficiency of the evidence. After being directly asked by the court whether he challenged the sufficiency of the evidence, defendant’s counsel replied that he did not. Moreover, the foregoing authorities make it clear that because defendant asserted specific grounds for his Rule 29 motion, viz., the statute of limitations, defendant has waived all other grounds. Further, at the close of all the evidence, defendant merely adopted his previous motion, which we have found inadequate. Therefore," }, { "docid": "23353621", "title": "", "text": "1 and 2 because of the allegation in the superseding indictment.... Trial transcript, Vol. XVII at 143-45. Defendant’s counsel then proceeded to argue that there was insufficient evidence to support the conviction on Count 6, charging obstruction of justice, and that the failure of that charge would require dismissal of Counts 1 and 2. At the close of all the evidence, defendant’s counsel, stated: MR. LORD: We would make a general renewal of our Rule 29 motions at the end of the case. THE COURT: So noted. MR. LORD: I would make a specific renewal as to two particular counts. Defendant’s counsel then made specific arguments that the evidence was insufficient on Counts 6 and 7. Trial transcript, Vol. XXXVI at 9-11 (emphasis added). The district court then rejected defendant’s challenge to the sufficiency of the evidence on Count 6, and defendant has not contested that ruling in this appeal. This court will not entertain a defendant’s challenge to the sufficiency of the evidence on appeal unless the defendant moved for a judgment of acquittal under Rule 29 at the close of the government’s ease-in-chief and at the close of all the evidence. United States v. Williams, 940 F.2d 176, 180 (6th Cir.), cert. denied, — U.S. -, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991). Such a failure to make the required Rule 29 motions constitutes a waiver of an objection to the sufficiency of the evidence. Id. Although specificity of grounds is not required in a Rule 29 motion, see United States v. Gjurashaj, 706 F.2d 395, 399, (2d Cir.1983), where a Rule 29 motion is made on specific grounds, all grounds not specified are waived: However, where as here a motion for acquittal is made on specified grounds which do not include any objection to venue, we think that objection has been waived. The specification of grounds in the motion is an indication that counsel has evaluated the record and has thése particular reasons for his motion. His. omission of venue from those reasons is similar to a general failure to move for acquittal in spite of the" }, { "docid": "12651003", "title": "", "text": "as 'to the proof of venue? The motion for acquittal takes the place of a motion for directed verdict. Rule 29, Federal Rules of Criminal Procedure, supra, and see Notes of Advisory Committee on Rules, Subd. (a) 1. The motion for a directed verdict raises the question as to the sufficiency of the evidence to support the verdict of a jury or finding of the court. One of the things the Government has the burden of proving is venue. It is an essential part of the Government’s case. Without it, there can be no conviction. U.S.Const. Amend. VI; Cain v. United States, 8 Cir., 12 F.2d 580; Brightman v. United States, 8 Cir., 7 F.2d 532; Moran v. United States, 6 Cir., 264 F. 768; Vernon v. United States, 8 Cir., 146 F. 121, 126. We think the motion for acquittal made at the conclusion of all the evidence properly raised the question of venue in the court below. It is a challenge to the Government in the presence of the court that the Government has failed in its proof. The motion is not required by the rules to be in writing or to specify the grounds therefor. That in itself would indicate that the defendant is not required to go over the proof for the benefit of the Government or the court, in the absence of some request for more specific objection. We do not know what kind of a motion \"for discharge” was made. No written motion was set forth in the record. We assume that the motion was oral and was summarily overruled by the court, and the Government was satisfied with the record. The Government has a duty to perform. First, it must prove its case on the record and that includes the proof of venue. Second, if that proof is challenged as to sufficiency by a general motion for acquittal, it is the Government’s duty to require the defendant to be specific in his objection, and a failure to do so will not enable the Government on appeal to say that the question was not" }, { "docid": "20009462", "title": "", "text": "essential element of the government’s case, including venue. See United States v. Gross, 276 F.2d 816, 818-19 (2d Cir.1960) (noting a motion for acquittal made at conclusion of evidence properly challenges the proof on venue); United States v. Browne, 225 F.2d 751, 755 (7th Cir.1955) (holding with respect to a general motion for directed verdict that it raised the question as to the sufficiency of the evidence on venue, “an essential part of the Government’s case” (internal quotation marks and citation omitted)); 2 Wright, supra, § 306, at 345-46 (“A general motion for acquittal after all the evidence is in is sufficient to challenge the failure to prove venue,.... ”). Here, Mr. Kelly raised a general motion for acquittal. It came after the government rested its case. Defense counsel stated: “At this point, Your Honor, we’ll just make the standard motion to dismiss for failure to establish a prima facie case as a pro forma motion.” R., Vol. V, Doc. 66, at 33 (Tr. of Jury Trial, dated Sept. 27, 2005). The district court responded: “All right. That motion will be denied. The government has established the elements of the offense here, at least evidence from which a jury could conclude that they have been established. It’s up to the jury to figure out whether that’s the case or not.” Id. By raising such a general motion, Mr. Kelly put at issue all of the essential elements of the charged offenses, including venue. Accordingly, we conclude that Mr. Kelly adequately preserved his venue challenge for appellate review and turn to the merits. 2. Consideration of Venue Challenge on the Merits Mr. Kelly argues the law requires the government to present evidence that the offense charged occurred within Utah, “or at least gives rise to a reasonable inference of a location within the district [of Utah] sufficient that a finding may be made by a preponderance of the evidence.” Aplt. Br. at 7. We agree, but conclude that the government met this burden. There does not appear to be any direct evidence on the venue question, but there need not be." }, { "docid": "20512099", "title": "", "text": "of the government’s case and after the trial, they nevertheless disagree as to the proper standard of review for this claim. Under our precedent, although a general sufficiency-of-the-evidence objection preserves all possible sufficiency arguments, a motion raising only specific sufficiency arguments waives unenumerated arguments. United States v. Lyons, 740 F.3d 702, 716 (1st Cir.2014); United States v. Marston, 694 F.3d 131, 134 (1st Cir.2012). We have suggested that a general sufficiency objection accompanied by specific objections preserves all possible sufficiency objections. See Marston, 694 F.3d at 135 (finding “good reason in case of doubt” to treat such motions as general, because “[i]t is helpful to the trial judge to have specific concerns explained even where a general motion is made; and to penalize the giving of examples, which might be understood as abandoning all other grounds, discourages defense counsel from doing so and also creates a trap for the unwary defense lawyer”). At the close of the government’s case, Foley’s counsel moved for judgment of acquittal on all counts. Defense counsel then proceeded to state: “But in reality, Judge, there is one very serious issue. And that is the government has failed to establish that the District of Massachusetts is the proper venue for this prosecution.” Foley’s post-trial motion for acquittal in turn stated that “[a] judgment of acquittal should be granted on Counts 1-33 [i.e., the wire fraud counts] as the government failed to prove proper venue in the District of Massachusetts.” Neither of these motions are the type of “general motion accompanied by examples” contemplated in Marston. Neither motion raised any issue other than venue, and .although the oral motion at the close of evidence might with some imagination be interpreted as treating venue as merely “one very serious issue” of many, the post-trial motion is not susceptible even to such liberal reading. We therefore treat Foley’s signature-based' sufficiency challenge as unpreserved, and review for clear and gross injustice only. Id. at 134; see also United States v. Upham, 168 F.3d 532, 537 (1st Cir.1999), cert. denied, 527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999). We" }, { "docid": "2745141", "title": "", "text": "violence could result if the loan is not repaid. Id. at 1544. Allen points out that the word “understand” is very broad and may not in every case be sufficient to mitigate the law’s vagueness. Specifically, Allen argues that if his actions are sufficient to prove understanding under § 892(a), the statute encompasses conduct that the person of ordinary intelligence would not know is prohibited. Although this argument may have some merit, the argument is better conceived as a challenge to the sufficiency of the evidence. The sufficiency of the evidence to satisfy the scienter requirement in a particular case is a threshold issue that obviates a vagueness challenge. Moreover, it is preferable to address the sufficiency issue if it has merit, because—unlike the vagueness issue— the sufficiency issue ordinarily raises no constitutional question. Accordingly, before considering the evidentiary sufficiency in this case, we must consider whether Allen preserved the sufficiency issue at trial and raised it on appeal, and-—if not—-whether we may reach it and by what standard we must review it. The Government concedes that the defendant “technically preserved” the sufficiency issue at trial via his Rule 29 motion at the conclusion of the Government’s case and at the conclusion of all the evidence. However, without citing authority, the Government asserts that the issue was “abandoned” or “disavowed” by Allen’s failure to raise it in the Rule 29(c) post-trial motion, and is therefore subject to review only for “plain error.” 1 To preserve the sufficiency issue and avoid the burden of showing plain error, a defendant must have moved for judgment of acquittal either at the close of all the evidence pursuant to Rule 29(a) or post-trial in a motion pursuant to Rule 29(c). See United States v. Pless, 982 F.2d 1118, 1122 (7th Cir.1992); cf. United States v. Leslie, 103 F.3d 1093, 1100-01 (2d Cir.) (holding that defendant did not waive sufficiency challenge by raising argument in Rule 33 motion for new trial and not in Rule 29 motion for judgment of acquittal), cert. denied, — U.S. -, 117 S.Ct. 1713, 137 L.Ed.2d 837 (1997). We find" }, { "docid": "23168803", "title": "", "text": "indictment had an existence apart from the alleged pattern of racketeering activity; 2) the activities of the alleged RICO enterprise had a cognizable effect on interstate commerce; 3) the alleged Hobbs Act extortions had a cognizable effect on interstate commerce; 4) Appellant had any culpable involvement in a conspiracy to commit extortion under the Hobbs Act; and 5) there was an “illegal gambling business” as defined in 18 U.S.C. § 1511. This Court reviews the sufficiency of the evidence supporting a criminal conviction “by determining whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Wang, 222 F.3d 234, 237 (6th Cir.2000) (internal quotation marks omitted). Before reviewing the sufficiency of the evidence, however, we must determine whether Appellant has preserved these issues for appeal. The government argues that Appellant failed to preserve these challenges to the sufficiency of the evidence by failing to raise them in motions for judgment of acquittal made under Rule 29 of the Federal Rules of Criminal Procedure at the end of the prosecution’s casein-chief and at the close of evidence. This Court will not consider challenges to the sufficiency of the evidence if the defendant failed to make a Rule 29 motion for judgment of acquittal at the end of the prosecution’s case-in-chief and at the close of the evidence. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993). Failure to make the required motions constitutes a waiver of objections to the sufficiency of the evidence. Id. Although specificity in a Rule 29 motion is not required, where the defendant makes a Rule 29 motion on specific grounds, all grounds not specified in the motion are waived. Id. at 1356-57. In this case, since the record is clear that Appellant did make Rule 29 motions at the appropriate time, the issue is whether, as the government contends, Appellant’s Rule 29 motions were based on specific grounds which did not include the claims of insufficiency now asserted. In opposition, Appellant" }, { "docid": "23168804", "title": "", "text": "acquittal made under Rule 29 of the Federal Rules of Criminal Procedure at the end of the prosecution’s casein-chief and at the close of evidence. This Court will not consider challenges to the sufficiency of the evidence if the defendant failed to make a Rule 29 motion for judgment of acquittal at the end of the prosecution’s case-in-chief and at the close of the evidence. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993). Failure to make the required motions constitutes a waiver of objections to the sufficiency of the evidence. Id. Although specificity in a Rule 29 motion is not required, where the defendant makes a Rule 29 motion on specific grounds, all grounds not specified in the motion are waived. Id. at 1356-57. In this case, since the record is clear that Appellant did make Rule 29 motions at the appropriate time, the issue is whether, as the government contends, Appellant’s Rule 29 motions were based on specific grounds which did not include the claims of insufficiency now asserted. In opposition, Appellant argues that his Rule 29 motions were based on general grounds and that trial counsel merely highlighted specific areas of alleged insufficiency only as examples. In fact, Appellant argues, the record demonstrates that the trial judge understood that his motions were general in nature and could potentially be challenges to each element of the offense charged in each count of the indictment. The record reflects the following discussion on Appellant’s Rule 29 motion at the end of the government’s case-in-chief: Mr. Yelsky [Appellant’s trial counsel]: I agree. But at any rate, just to make the record complete, I would still make a Rule 29 motion. Particularly, I find no evidence that anyone said that Phil Chance helped extort Zoldan, as an example. And also, the only documentary evidence about any money offered by the government turned out to be a complete fabrication by Mr. O’Nesti, and that he testified very explicitly that he carried 5,000 dollars of cash that was given by Mr. Strollo to him, and that he very explicitly stated that he put" }, { "docid": "23353624", "title": "", "text": "case, but where he does specify grounds for the motion and omits mention of venue we must conclude that he cannot be considered to have raised a question concerning the place of trial. Since there can be no doubt that Rivera did move for acquittal on specific grounds without mention of improper venue at that time, he waived any objection he may have had. United States v. Rivera, 388 F.2d 545, 548 (2d Cir.), cert. denied, 392 U.S. 937, 88 S.Ct. 2308, 20 L.Ed.2d 1396 (1968). From the record,- it appears that defendant’s Rule 29 motion did not challenge the sufficiency of the evidence. After being directly asked by the court whether he challenged the sufficiency of the evidence, defendant’s counsel replied that he did not. Moreover, the foregoing authorities make it clear that because defendant asserted specific grounds for his Rule 29 motion, viz., the statute of limitations, defendant has waived all other grounds. Further, at the close of all the evidence, defendant merely adopted his previous motion, which we have found inadequate. Therefore, we hold that defendant has waived his challenge to the sufficiency of the evidence on Counts 1 and 2. F. Defendant Dandy argues that his conviction on Count 8 for mail fraud in violation of 18 .U.S.C. §■ 1341 must be reversed because it was based on a theory not recognized in this circuit nor alleged in the indictment. Specifically, defendant argues that the indictment sets forth a constructive trust theory which is inadequate to sustain his conviction for mail fraud.. Under the constructive trust theory, any economic benefit acquired by a fiduciary as a result of a breach of his fiduciary duty owed to a principal is held in trust for the principal. United States v. Runnels, 833 F.2d 1183, 1188 (6th Cir.1987), vacated on other grounds, 877 F.2d 481 (6th Cir.1989). The constructive trust theory does not require that the principal has suffered some actual economic loss, simply that the fiduciary has benefited economically from his breach. Id. at 1187. The superseding indictment charges that defendant “devised' and executed a scheme and’ artifice" }, { "docid": "1876853", "title": "", "text": "counts one and two, with instructions to allow Kuok to present evidence of duress to the jury. REVERSED; REMANDED. . The government had no notice of the duress defense, and the request would have entailed a continuance of the trial. See United States v. Hayes, 120 F.3d 739, 743 (8th Cir.1997) (\"The defendants offered no good cause for waiting six months [two days after the start of their trial] to request this alleged Brady material.\"). We express no opinion, however, on the merits of the issue should a timely request occur on remand. . On appeal, the government does not brief the claim that the duress defense should be excluded because pretrial notice was not given. . Although Kuok raises the nondelegation argument in the context of count three, it is clear that this argument is common to all counts, which arise under or depend in some way on the validity of the Arms Export Control Act. . At the close of the government's case, Kuok made a general motion for a judgment of acquittal, which the district court kept under submission. Kuok only explicitly raised the venue issue in briefing following the jury's verdict. The government raises a non-frivolous argument that Kuok has therefore waived his challenge to venue. This turns out to be a complex issue, given the state of the law in this circuit. See United. States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000) (\"[V]enue objections made at the close of the government's case-in-chief are timely if the defect in venue is not apparent on the face of the indictment.''); United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974) (‘‘[V]enue may be waived, and where, as here, the objection was not raised until after the jury had returned its verdict of guilty, we find that waiver did in fact occur.” (citation omitted)); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir. 1966) (general motion for acquittal, when \"specifically limited” to grounds other than venue, does not preserve a timely venue objection); Hanson v. United States, 285 F.2d 27, 28-29 (9th Cir. 1960)" }, { "docid": "20009461", "title": "", "text": "challenge to venue through his non-specific motion for acquittal, which did not explicitly identify a concern with venue. We have not addressed this precise issue. However, our venue precedent and the weight of authority in other circuits convince us that Mr. Kelly preserved his right to challenge the sufficiency of the evidence with respect to venue. “When a defendant challenges in district court the sufficiency of the evidence on specific grounds, ‘all grounds not specified in the motion are waived.’ ” United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (quoting United States v. Kinder, 335 F.3d 1132, 1141 (10th Cir.2003)). This would include an objection on venue grounds. See United States v. Price, 447 F.2d 23, 27 (2d Cir.1971) (finding if defendant “specifies grounds for acquittal but is silent as to venue” at conclusion of government’s case, defendant waives venue). On the other hand, if a defendant files a general motion for acquittal that does not identify a specific point of attack, the defendant is deemed to be challenging the sufficiency of each essential element of the government’s case, including venue. See United States v. Gross, 276 F.2d 816, 818-19 (2d Cir.1960) (noting a motion for acquittal made at conclusion of evidence properly challenges the proof on venue); United States v. Browne, 225 F.2d 751, 755 (7th Cir.1955) (holding with respect to a general motion for directed verdict that it raised the question as to the sufficiency of the evidence on venue, “an essential part of the Government’s case” (internal quotation marks and citation omitted)); 2 Wright, supra, § 306, at 345-46 (“A general motion for acquittal after all the evidence is in is sufficient to challenge the failure to prove venue,.... ”). Here, Mr. Kelly raised a general motion for acquittal. It came after the government rested its case. Defense counsel stated: “At this point, Your Honor, we’ll just make the standard motion to dismiss for failure to establish a prima facie case as a pro forma motion.” R., Vol. V, Doc. 66, at 33 (Tr. of Jury Trial, dated Sept. 27, 2005). The district court responded:" }, { "docid": "18228476", "title": "", "text": "Defendant moved for judgment of acquittal pursuant to Fed. R.Crim.P. 29, which was denied at the close of the government’s case and when renewed at the close of all the evidence. On April 27, 2004, defendant was sentenced to a term of 225 months’ imprisonment, to be followed by a three-year term of supervised release. This appeal followed. II. A. Sufficiency of the Evidence When considering a challenge to the sufficiency of the evidence to sustain a conviction on direct appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We must also resolve all reasonable inferences in favor of the government. United States v. Searan, 259 F.3d 434, 441 (6th Cir.2001). We may not, however, reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.1993). 1. Actual Intimidation Defendant argues that attempted bank robbery requires proof of “actual intimidation.” See 18 U.S.C. § 2113(a) (“Whoever, by force and violence, or by intimidation, takes, or attempts to take, ... ”). Conceding that this argument is raised for the first time on appeal, defendant contends that the argument was not waived because his Rule 29 motion for judgment of acquittal was “general in nature.” Specificity in a Rule 29 motion is not required. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993). When a defendant makes a motion on specific grounds, however, all grounds not specified in the motion are waived. Id. at 1357. A similar waiver argument was addressed in United States v. Chance, 306 F.3d 356, 371 (6th Cir.2002). There, the court found that although the colloquy focused on a specific area of the evidence, the motions were general in nature and the district court treated them as such by assessing the evidence as to each element of" }, { "docid": "7497815", "title": "", "text": "trafficking. They point to evidence that some of the drug dealers used the vehicles they purchased from Hosseini and Obaei in furtherance of their drug-trafficking activities. This evidence, they contend, suggests that the car payments were “business expenses,” not the net profits of the drug trade. This argument about the meaning of “proceeds” in the money-laundering statute is new on appeal. To preserve a challenge to the sufficiency of the evidence, a defendant must move for a judgment of acquittal in the trial court. United States v. Tavarez, 626 F.3d 902, 906 (7th Cir.2010). Both defendants did so here; they moved for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure at the close of the government’s case, and they renewed their motions at the close of evidence and again after the verdict. But they never raised the “proceeds” issue; instead, their Rule 29 motions identified other grounds for acquittal. For example, they argued that selling cars to drug dealers was not evidence of a RICO enterprise or a RICO or money-laundering conspiracy. Obaei also argued that the evidence was insufficient to find him guilty of aiding and abetting a drug conspiracy. As a general matter, and unlike its analogue in the Federal Rules of Civil Procedure, Rule 29 of the Federal Rules of Criminal Procedure does not require specificity when moving for a judgment of acquittal. Compare Fed.R.CrimP. 29 with FED.R.CrvP. 50(a)(2) (motions for judgment as a matter of law “must specify the judgment sought and the law and facts that entitle the movant to the judgment”). But we have held that a defendant’s choice to raise specific arguments and omit others in a Rule 29 motion has consequences on appeal. We have held that when a defendant challenges the sufficiency of the evidence by motion for judgment of acquittal and makes specific arguments in support of that motion, any arguments omitted are thereby forfeited. See United States v. Groves, 470 F.3d 311, 324 (7th Cir.2006) (citing United States v. Moore, 363 F.3d 631, 637 (7th Cir.2004) (“[Wjhen ... a [Rule 29] motion raises specific" }, { "docid": "20009484", "title": "", "text": "proper objection may obtain relief for plain error....” Teague, 443 F.3d at 1314. We need not, however, detail the application of plain error standards here, because we not only conclude that Mr. Kelly did not waive his venue challenge, but also (as discussed infra) that he properly preserved it for appeal. . We recognize that some circuit authority could be construed as pointing in a different direction. See, e.g., United States v. Matera, 489 F.3d 115, 124 (2d Cir.2007) (noting the principle that “a defendant’s objections to venue are waived unless specifically articulated” (citing United States v. Bala, 236 F.3d 87 (2d Cir.2000))), cert. denied, 128 S.Ct. 424 (2007); United States v. Carbajal, 290 F.3d 277, 289 n. 19 (5th Cir.2002) (concluding that the defendant \"failed to preserve” his challenge to venue when he did not \"specifically rais[e] the issue in his motion for acquittal or by requesting a jury instruction on venue” (emphasis added)). We need not undertake, however, a detailed analysis to determine whether these cases actually conflict with the view of preservation of venue challenges adopted here. Assuming that these cases properly may be read to require defendants to specifically identify venue as a basis for a motion for acquittal to preserve a sufficiency-of-the-evidence challenge to venue, we deem them to be unpersuasive because they offer no explanation for why venue should be treated differently than any other offense element, the challenge to which would be preserved by a general motion for acquittal. And we are not aware from our research of a cogent reason to apply such a differential treatment to the venue element of an offense on the issue of preservation. . There can be no dispute regarding these facts and confirmation of them can be easily found through simple Internet searches. See Welcome to Ogden City, http://www. ogdencity.com (official website of Ogden City, Utah) (last visited June 25, 2008); Mapquest, http://www.mapquest.com/maps (search for address of “Sunview” or \"Mountain” in Og den, Utah in “Maps” dialogue box) (last visited June 25, 2008); North Ogden City, http:// www.northogdencity.com (official website of North Ogden City, Utah) (last" }, { "docid": "20009460", "title": "", "text": "rested its case at trial. See id.; see also 2 Wright, supra, § 306, at 345 (“If there is a proper allegation of venue, but the proof fails to support the allegation, the objection can be raised at the close of all of the evidence.”). Accordingly, we cannot conclude here that Mr. Kelly waived venue. If we were to do so, we would be essentially penalizing Mr. Kelly for failing to accurately predict before the trial began the venue-related evidence the government would offer at trial. See Jenkins, 392 F.2d at 306-07 (where indictment was “on its face ... complete as to venue,” rejecting as having “little appeal” the government’s contention that because the defendant was being retried on the same indictment he should have objected to venue “before the trial commenced,” stating that “the defendant was entitled to have the trial proceed as there was no way of knowing that the proof at the second trial would be the same as at the first”). The more difficult question is whether Mr. Kelly preserved his challenge to venue through his non-specific motion for acquittal, which did not explicitly identify a concern with venue. We have not addressed this precise issue. However, our venue precedent and the weight of authority in other circuits convince us that Mr. Kelly preserved his right to challenge the sufficiency of the evidence with respect to venue. “When a defendant challenges in district court the sufficiency of the evidence on specific grounds, ‘all grounds not specified in the motion are waived.’ ” United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (quoting United States v. Kinder, 335 F.3d 1132, 1141 (10th Cir.2003)). This would include an objection on venue grounds. See United States v. Price, 447 F.2d 23, 27 (2d Cir.1971) (finding if defendant “specifies grounds for acquittal but is silent as to venue” at conclusion of government’s case, defendant waives venue). On the other hand, if a defendant files a general motion for acquittal that does not identify a specific point of attack, the defendant is deemed to be challenging the sufficiency of each" }, { "docid": "23193142", "title": "", "text": "and a four-level enhancement under U.S.S.G. § 3Bl.l(a) for a leadership role in a criminal activity that involved five or more participants. The adjusted offense level of forty, along with a criminal history category of III, yielded a Guidelines imprisonment range of 360 months to life. The district court sentenced Mr. Hamilton to 360 months’ imprisonment and five years of supervised release. Mr. Hamilton timely filed a notice of appeal. II. DISCUSSION A. Sufficiency of the Evidence: Venue Mr. Hamilton’s first argument on appeal is that venue for his trial was not proper in Kansas because there was insufficient evidence at trial to support the indictment’s charge that he was a member of a conspiracy that acted “in the District of Kansas and elsewhere.” ApltApp. at 2. He argues that this is a fatal variance which requires reversal of his conviction. See, e.g., United States v. Windrix, 405 F.3d 1146, 1154 (10th Cir.2005) (discussing variances and noting that “[e]ven if there was a variance” it would not be “a ground for reversing” convictions, if “it was not substantially prejudicial to Defendants”). He first raised the venue issue in pretrial motions, and pressed this argument at the close of the government’s evidence in a Federal Rule of Criminal Procedure 29(a) motion for judgment of acquittal, and renewed it in a Rule 29(c) motion after the verdict. The district court rejected the Rule 29(a) motion in an extensive ruling from the bench and later relied on that ruling in rejecting the Rule 29(c) motion at the sentencing hearing. We review de novo the district court’s denial of the Rule 29 motions. See United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir.) (“We review the sufficiency of the evidence to support a jury’s verdict and the denial of [defendant’s] motion for judgment of acquittal de novo.”), cert. denied, - U.S. -, 129 S.Ct. 281, 172 L.Ed.2d 149 (2008). As he frames the issue, Mr. Hamilton’s ultimate challenge is to the sufficiency of the evidence to establish venue. Although venue is not a substantive element of a narcotics crime, it must be proved" }, { "docid": "14072660", "title": "", "text": "failed to establish venue in the Western district. We find the Eighth Circuit’s decision in United States v. Black Cloud helpful and persuasive. The Black Cloud opinion, adopted by the Eleventh Circuit in United States v. Daniels, held that “when an indictment contains a proper allegation of venue so that defendant has no notice of a defect of venue until the government rests its case, the objection is timely if made at the close of the evidence.” This reasoning provides the appropriate balance between judicial economy and safeguarding a defendant’s right to be tried in a district with the requisite venue. A defendant indicted by an instrument which lacks sufficient allegations to establish venue waives any future challenge by failing to object before trial. In situations where adequate allegations are made but the im propriety of venue only becomes apparent at the close of the government’s ease, a defendant may address the error by objecting at that time, and thus preserve the issue for appellate review. In applying the rationale of the Black Cloud ruling to the instant appeal, we find that Lopez properly preserved for appellate review his claim that the government failed to introduce sufficient evidence of venue. The indictment alleged possession of marihuana in the Western District of Texas, thus Lopez had no basis to complain of venue until the government rested. At that time, Lopez moved for judgment of acquittal under Fed.R.CRIm.P. 29, citing the government’s failure to establish venue. This motion properly preserved this issue for appellate review, The record herein, however, does not support Lopez’ claim. The government presented sufficient evidence to sustain the jury’s finding that venue was proper. To prove venue, “[t]he prosecution need only show by a preponderance of the evidence that the trial is in the same district as the criminal offense.” Under 18 U.S.C. § 3237, aiding and abetting “may be tried in the district where the principal committed the substantive crimes.” Accordingly, we must ask whether, viewing the evidence in the light most favorable to the government and making all reasonable inferences and credibility choices in favor of" }, { "docid": "18228477", "title": "", "text": "jury. United States v. Hilliard, 11 F.3d 618, 620 (6th Cir.1993). 1. Actual Intimidation Defendant argues that attempted bank robbery requires proof of “actual intimidation.” See 18 U.S.C. § 2113(a) (“Whoever, by force and violence, or by intimidation, takes, or attempts to take, ... ”). Conceding that this argument is raised for the first time on appeal, defendant contends that the argument was not waived because his Rule 29 motion for judgment of acquittal was “general in nature.” Specificity in a Rule 29 motion is not required. United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir.1993). When a defendant makes a motion on specific grounds, however, all grounds not specified in the motion are waived. Id. at 1357. A similar waiver argument was addressed in United States v. Chance, 306 F.3d 356, 371 (6th Cir.2002). There, the court found that although the colloquy focused on a specific area of the evidence, the motions were general in nature and the district court treated them as such by assessing the evidence as to each element of each crime. Here, the defendant’s rule 29 motion challenged the sufficiency of the evidence to establish both elements of attempt. This, in the abstract, might seem to be a “general” challenge to the sufficiency of the evidence. In fact, defendant is arguing that there is an additional element to attempted bank robbery. For this reason, we find defendant’s motion was not a general challenge to all the elements and this claim was waived by the failure to raise it in the Rule 29 motion. See United States v. Price, 134 F.3d 340, 350 (6th Cir.1998). Even if the issue had not been waived, however, we would find it to be without merit. On appeal, defendant relies on a Fifth Circuit decision, openly-creating a split of authority, that held the most natural reading of the statute requires proof that the defendant actually committed an act of intimidation, or of force and violence, in order to be convicted of attempted bank robbery. United States v. Bellew, 369 F.3d 450 (5th Cir.2004). That is, the court found the" }, { "docid": "12287343", "title": "", "text": "waiver if the defect in venue is clear on the face of the indictment. See United States v. Turley, 891 F.2d 57, 61 (3d Cir.1989). Where, as here, the offense described in the indictment is a conspiracy that allegedly was completed in the district in which the government is prosecuting the defendant, a defect in venue may not be clear on the indictment’s face, and would become clear only once the government rests its case. Therefore, we have held that “where there is a proper allegation of venue in the indictment, but the government fails to prove that allegation at trial, a challenge to venue in a motion for acquittal is timely.” United States v. Sandini, 803 F.2d 123, 127 (3d Cir.1986). Thus, Robinson could have timely objected to venue at the close of the govern-merit’s case, and was not required to object before the close of the government’s case. Id. Robinson contends that under Sandini he sufficiently preserved his objection to venue in his motion for judgment of acquittal five days after the jury announced its verdict. We, however, agree with the Courts of Appeals for the First and Fifth Circuits that a defendant must raise the issue of improper venue before the jury returns a verdict. See United States v. Parrish, 736 F.2d 152, 158 (5th Cir.1984) (per curiam) (“Thus, the courts have consistently ruled that a claim of venue must be raised at least prior to a verdict.”); United States v. Cordero, 668 F.2d 32, 44 (1st Cir.1981) (same). Therefore, by raising the issue for the first time after the jury reached a verdict, Robinson waived any objection to venue. However, even if we were to find that Robinson timely challenged venue, we would reject his argument. The United States can bring a prosecution in any district where a conspiracy was begun, continued, or completed. See 18 U.S.C. § 3237(a). It is undisputed that Bungar delivered the heroin he acquired from Robinson to Minchoff and Allison in the Western District of Pennsylvania. To establish a conspiracy, the evidence must show that the alleged conspirators shared a unity" }, { "docid": "23193143", "title": "", "text": "was not substantially prejudicial to Defendants”). He first raised the venue issue in pretrial motions, and pressed this argument at the close of the government’s evidence in a Federal Rule of Criminal Procedure 29(a) motion for judgment of acquittal, and renewed it in a Rule 29(c) motion after the verdict. The district court rejected the Rule 29(a) motion in an extensive ruling from the bench and later relied on that ruling in rejecting the Rule 29(c) motion at the sentencing hearing. We review de novo the district court’s denial of the Rule 29 motions. See United States v. Vigil, 523 F.3d 1258, 1262 (10th Cir.) (“We review the sufficiency of the evidence to support a jury’s verdict and the denial of [defendant’s] motion for judgment of acquittal de novo.”), cert. denied, - U.S. -, 129 S.Ct. 281, 172 L.Ed.2d 149 (2008). As he frames the issue, Mr. Hamilton’s ultimate challenge is to the sufficiency of the evidence to establish venue. Although venue is not a substantive element of a narcotics crime, it must be proved in every criminal case. See, e.g., United States v. Kelly, 535 F.3d 1229, 1233 (10th Cir.2008) (“Although venue is not the focal point in most criminal matters, it is not a mere technicality. It is a constitutional consideration and an element of every crime.” (citations and internal quotation marks omitted)), cert. denied, — U.S. -, 129 S.Ct. 1392, 173 L.Ed.2d 642 (2009). The success of Mr. Hamilton’s venue challenge, however, depends upon the success of a tandem attack on the sufficiency of the evidence to support his conviction for the charged narcotics conspiracy. Ordinarily, we determine whether a rational jury could find the defendant guilty of the charged conspiracy beyond a reasonable doubt, viewing both the evidence and reasonable inferences to be drawn from the evidence in the light most favorable to the government. Id. at 1232-33. “In so doing, we do not weigh evidence or credibility; we ask instead only whether the government’s evidence, credited as true, suffices to establish the elements of the crime.” United States v. Hutchinson, 573 F.3d 1011, 1033 (10th" } ]

[ { "docid": "23294205", "title": "", "text": "Central Union Trust Co. v. Garvan, supra, 566, 569; Stoehr v. Wallace, supra, 246. Plainly inadequate would be a remedy which could be availed of only while the Custodian or Treasurer continued to retain possession of the seized property or its proceeds, and which would be lost whenever he disposed of the property and proceeds, whether lawfully or not. In determining whether the remedy given is thus restricted it must be presumed that Congress intended that it should be constitutionally sufficient. The implication that by the appropriation of private property to public use the United States undertakes to make just compensation for it, see United States v. Lynah, 188 U. S. 445, 471; Jacobs v. United States, 290 U. S. 13; Perry v. United States, 294 U. S. 330; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, must likewise enter into the construction of a statute giving to a non-enemy a remedy for the seizure of his property as a war measure. Only compelling language in the congressional enactment will be construed as withdrawing or curtailing the privilege of suit against the government granted in recognition of an obligation imposed by the Constitution. See Lynch v. United States, 292 U. S. 571, 586, 587; Russian Volunteer Fleet v. United States, 282 U. S. 481, 489. Hence § 9 (a) must be broadly construed to give effect to its remedial purpose, see Miller v. Robertson, 266 U. S. 243, 248; Behn, Meyer & Co. v. Miller, 266 U. S. 457, 471, 472. In the present state of the record it is unnecessary to inquire whether the effect of the act is to sanction in every case the sale of the property of a non-enemy giving him recourse only to the proceeds of sale. See Sielcken-Schwarz v. American Factors, 60 F. (2d) 43, 44. That question was not raised or considered below. The issue now presented is much narrower, whether the failure of the Custodian to retain possession of the seized property or its proceeds precludes all inquiry as to the propriety of the disposition which he has made of them." } ]

[ { "docid": "2234185", "title": "", "text": "as to the constitutionality of the provisions of Title III. Compare St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 77, 84, 56 S.Ct. 720, 80 L.Ed. 1033. The First War Powers Act, 1941, itself does not provide any remedy whatsoever for the return of property erroneously seized as property of a national of a foreign or enemy country. If construed as unaffected by Section 9(a), it would depend upon the will of the President or his representative whether there should be even an administrative remedy and if so what it shall be. Notwithstanding that the Trading With the Enemy Act of 1917 was a war measure, the seizures by the Alien Property Custodian under it before the 1941 amendment were held to be constitutional only because adequate remedies were provided by the Act for a return of the property or its proceeds in case the property was erroneously seized Stoehr v. Wallace, 255 U.S. 239, 41 S.Ct. 293, 65 L.Ed. 604; Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403, affirming Garvan v. $20,000 Bonds, 2 Cir., 265 F. 477, 479, in which there is the direct statement “If persons not alien enemies, or allies of alien enemies were given no means to protect their interests in such property the seizure would be unconstitutional as without due process of law; but they are given such remedies under section 9.” The defendant argues that the Court oi Claims has jurisdiction to decide claims against the government and also that the law implies a promise on the part of the government to make compensation for private property appropriated by it for public use, which is enforceable by the courts. It must suffice here to state that these remedies were in existence when the foregoing cases were decided and that this suit was brought in equity chiefly for an in junction against liquidation and not for compensation. “Acts of Congress are to be construed and applied in harmony with and not to thwart the purpose of the Constitution.” Phelps v. United States, 274 U.S." }, { "docid": "12020512", "title": "", "text": "doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy, * * * if adequate provision is made for a return in case of mistake.” As said in Lamar v. Browne, 92 U.S. 187, 196, 23 L.Ed. 650, necessarily, the custodian must act upon appearances. It is his official duty to seize and hold, leaving to the owners to make good their claim as against the capture, in the appropriate tribunal established for that purpose. Thus we have developed a clearly defined policy governing the vesting of enemy property and return of innocent property to a nonenemy owner. Plaintiff is, under the averments of her complaint, the owner of innocent American property, a friendly alien permanent resident of the United States and as such, entitled to constitutional guarantees. Thus, in Silesian-American Corp. v. Clark, 332 U.S. 469, 68 S.Ct. 179, 184, 92 L.Ed. 81, the court said: “The constitution guarantees to friendly aliens the right to just compensation for the requisitioning of their property by the United States. Russian Volunteer Fleet v. United States [282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473]. We must assüme that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken * * .” This, of course, refers to the guarantees of the Fifth Amendment, Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229. We think that the word “friendly” is as applicable to a loyal resident alien, even though of enemy nationality, as it is to one of our own citizens, and this seems to be the conclusion in other cases, such as Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19, and Ex parte Kumezo Kawato, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58. The Supreme Court, itself, said, in Becker Steel Co. v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 18: “The seizure and detention which the statute commands and the denial" }, { "docid": "2234187", "title": "", "text": "341, 47 S.Ct. 611, 612, 71 L.Ed. 1083; Russian Volunteer Fleet v. United States, 282 U.S. 481, 491, 51 S.Ct. 229, 75 L.Ed. 473; Becker Steel Co. v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 80 L.Ed. 54. The legislative history of the Act does not disclose that this construction is inconsistent with the purposes of Congress in extending the War Powers of the President over nationals of foreign countries. The authorities cited by the defendant which hold that the court should act with great restraint in granting injunctions in cases in which important public or national interests are involved, especially in time of war, are not applicable. Discretion is not involved. None is left to the court. Congress, in which the ultimate power to declare public policy is vested, makes it mandatory that the Alien Property Custodian should in case of suit brought against him retain the property in his possession until final disposition of the suit. He would be acting without jurisdiction and beyond the powers delegated to him were he to do otherwise. Congress has determined that there shall be a judicial remedy afforded to all but enemies and allies of an enemy in cases of erroneous seizure of their property notwithstanding the existence of war. The Act itself provides that any person not an enemy or ally of enemy may apply either to the President or to the Alien Property Custodian for the return of his property or maintain a suit in equity to establish his right to the possession of such property. It is true that in Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075, a rate case, relied on by the government, it was held that notwithstanding that the Interstate Commerce Act allowed the choice of an administrative or judicial remedy, the plaintiff must exhaust his administrative remedy before he may seek the judicial remedy. However, this case is not controlling because the same court subsequently held that under the Trading With the Enemy Act the plaintiff may have" }, { "docid": "15568371", "title": "", "text": "Act of 1941, it authorized the taking of any property or interest therein of any foreign national. This broadening of the scope of the Custodian’s power to vest so as to include interests of friendly aliens in property includes the power to vest the interest which friendly aliens have from pledges. As the Circuit Court of Appeals said, p. 797: “Any other interpretation of the section would make the pledges of friendly aliens a wholly irrational exception to the general purpose to subject all alien interests to seizure.” Therefore, as we hold that § 5 (b) (1) rendered § 8 (a) inapplicable to the property of friendly aliens, the order of the Custodian was valid and Silesian’s objection disappears. Finally there is the argument that Silesian cannot be compelled to issue the new certificates because the friendly aliens who claim interests in the Non Ferrum stock may not succeed in recovering the just compensation for the taking. See Russian Volunteer Fleet v. United States, 282 U. S. 481, 489. The Constitution guarantees to friendly aliens the right to just compensa tion for the requisitioning of their property by the United States. Russian Fleet v. United States, supra. We must assume that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken and Silesian is protected by the exculpatory clauses of the Act from any claim from its alien stockholders. Judgment affirmed. The Chief Justice took no part in the consideration or decision of this case. They are Union Bank of Switzerland, La Roche & Company, Banque Cantónale de Berne, and Aktiengesellschaft Leu & Company. Trading with the Enemy Act, 40 Stat. 411, as amended by the First War Powers Act of 1941, 55 Stat. 839, § 5 (b) (1): “During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise— “(B) investigate, regulate, direct and" }, { "docid": "11997272", "title": "", "text": "gave rise to an implied contract with the United States to pay therefor. We look to the cases to determine whether on this state of the record the complaint lacks substance. In Jacobs v. United States, 1933, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142, petitioners brought suits to recover just compensation for property taken by the United States for public use in the exercise of the power of eminent domain. The Supreme Court there stated that the right to recover just compensation for property taken for public use by the United States in the exercise of its power of eminent domain gave rise to an implied promise to pay, based upon the duty imposed by the Fifth Amendment to the Constitution of the United States. An action based upon an implied promise to pay for the taking of private property for public purposes comes within Title 28 U.S.C.A. § 1346(2), which allows suits against the sovereign on contracts “express or implied”. The Constitution requires that the owner be compensated in the amount of the loss caused by the appropriation of a valuable property interest. Bauman v. Ross, 1897, 167 U.S. 548, 17 S.Ct. 966, 42 L.Ed. 270; Phelps v. United States, 1927, 274 U.S. 341, 47 S.Ct. 611, 71 L.Ed. 1083; see United States v. Sponenbarger, 1939, 308 U.S. 256, 60 S.Ct. 225, 84 L.Ed. 230; United States v. Great Falls Mfg. Co., 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846. Similar questions to those raised in the case before us were involved in Mullen Benevolent Corp. v. United States, 1933, 290 U.S. 89, 95, 54 S.Ct. 38, 78 L.Ed. 192, where an action was brought to recover the balance due on improvement district bonds issued by a village for sidewalk and sewer construction. The United States had acquired the land for construction of a reservoir under the authority of an act of Congress, and had caused to be paid all assessments against the land which had been levied up to the taking. Later, the city reassessed all of the lands within the districts. As the" }, { "docid": "22826488", "title": "", "text": "answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law.”); United States v. Henry, 604 F.2d 908, 914 (5th Cir.1979) (“[A]n alien who is within the territorial jurisdiction of this country, whether it be at the border or in the interior, in a proper case and at the proper time, is entitled to those protections guaranteed by the Fifth Amendment in criminal proceedings which would include the Miranda warning.”). The courts have further ruled that aliens who are the victims of unconstitutional government action abroad are protected by the Bill of Rights if the government seeks to exploit fruits of its unlawful conduct in a criminal proceeding in the United States. United States v. Demanett, 629 F.2d 862, 866 (3d Cir.), cert. denied, 450 U.S. 910, 101 S.Ct. 1347, 67 L.Ed.2d 333 (1980); United States v. Toscanino, 500 F.2d 267, 280 (2d Cir.1974); cf. United States v. Tiede, 86 F.R.D. 227, 242-44 (U.S. Ct. for Berlin 1979) (protections of Bill of Rights apply to friendly aliens in the American sector of West Berlin). The Supreme Court has also recognized that even non-resident aliens are entitled to the protection of the fifth amendment’s prohibition on unlawful takings. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 491-92, 51 S.Ct. 229, 232, 75 L.Ed. 473 (1931). These authorities, however, do not mandate the conclusion that excludable aliens such as the Haitian plaintiffs can claim equal protection rights under the fifth amendment with regard to parole. Russian Volunteer Fleet can be distinguished because it clearly does not implicate in any way the powers of the national government over immigration. When the government seizes the property of foreign nationals within this country, its actions do not fall within a sphere of plenary executive and legislative authority, and it therefore cannot claim that the aliens involved are entitled only to the degree of due process that Congress is prepared to extend them as a matter of grace. Similar considerations apply in the context" }, { "docid": "4736017", "title": "", "text": "I think there is no doubt that title to the land was validly acquired by the government from these landowners under the authority of the act and the procedure taken thereunder. Similar acts for the acquisition of private property were quite common during the World War, and have been upheld in their application by the Supreme Court. See United States v. New River Collieries, 262 U. S. 341, 43 S. Ct. 565, 67 L. Ed. 1014, Phelps v. United States, 274 U. S. 341, 47 S. Ct. 611, 71 L. Ed. 1083, Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 43 S. Ct. 354, 67 L. Ed. 664 (all applying the well-known Lever Act, 40 Stat. 276, 279); Manufacturers’ Land, etc., v. U. S. S. B. Emergency Fleet Corporation, 264 U. S. 250, 44 S. Ct. 314, 68 L. Ed. 664 (applying the Act of March 1, 1938, c. 19, 40 Stat. 438, which authorized the Shipping Board to requisition land); Russian Volunteer Fleet v. United States, 282 U. S. 481, 51 S. Ct. 229; 75 L. Ed. 473 (applying the Act of June 15, 1917 [40 Stat. 183]); Campbell v. United States, 266 U. S. 368, 45 S. Ct. 115, 69 L. Ed. 328 (applying the Act of July 2, 1917, c. 35, 40 Stat. 241, as amended April 11, 1918, c. 51, 40 Stat. 518 (50 USCA § 171), a similar act, but in somewhat different form); United States v. Stein (D. C. N. D. Ohio) 48 F.(2d) 626 (applying the Act of May 16, 1918, 40 Stat. 550, which authorized the taking of property for housing employees in necessary war industries). See, also, Ferris v. Wilbur, Secretary of the Navy, 27 F.(2d) 262, where the Circuit Court of Appeals for this circuit impliedly approved the procedure in taking over land by the President by proclamation (40 Stat. 1820, 1827), under the same act of Congress of July 1, 1918 (Public No. 182, 65th Congress, c. 114, 40 Stat. 704, 722), with which we are concerned in those eases. See, also, for similar legislation," }, { "docid": "14354642", "title": "", "text": "alien without remedy against the person who should make the transfer. Moreover, neither § 5(b) nor any other section of the Trading with the Enemy Act gave him any remedy, unless it were § 9(a). A friendly alien stands in a position different from either an enemy or a citizen whose property has been seized. A citizen may avail himself of § 9(a) to reclaim his property, as much when it has been seized under § 5(b) as under § 7(c) ; if he is successful in the suit, he will be restored to possession, for the seizure will be shown to have been unlawful. Such too was the position of a friendly alien under § 9(a) in the original Act. Ah enemy or an ally of an enemy is positively and intentionally denied relief, not only in § 9(a) but elsewhere, because his property may be forfeited; he can rely only upon the grace of Congress. But by hypothesis a friendly alien can not reclaim his property if the seizure has been lawful ;• and yet he cannot be deprived of it without just compensation, because the Fifth Amendment protects him. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473. Thus it can be argued with much force that, unless some provision can be found by which he may secure compensation, § 5(b) is unconstitutional; and, if so, it would at best be doubtful whether the protection given by subsection (2) would be valid. It so chances that both the debtor and the Custodian take the position that a friendly alien may not sue under § 9(a). That may be so, for, although he would have formal capacity to sue under that section — not being an enemy or an ally of an enemy — in order to recover he would have to “establish” some “interest, right, or title” in the seized property; yet, if § 5(b) is valid, the seizure would be valid, and by the seizure all his “interest, right and title” would have “vested” in the Custodian. However that" }, { "docid": "9738788", "title": "", "text": "of an Act which makes our courts open to “aliens” and “closed” to citizens of the District of Columbia. Unfortunately, after a study of this case we find we have only transferred our inquiry, and our doubts, from the question before us to an inquiry as to what Justice Marshall meant when he wrote the last sentence of that opinion, “But this is a subject for legislative, not for judicial consideration.” What did he mean when he used the word “legislative” ? Did he intend that “legislative” required an amendment to the Constitution, or just an Act of Congress? Have we not here quite as great uncertainty as if he had not spoken ? Various courts seem to have refused to accept the Ellzey case as conclusively controlling, and language is used which favors the upholding of the statute. The Federal courts which have passed directly on this question have divided — those denying the constitutionality are in the majority, I am told (7-2). No Circuit Court of Appeals has heretofore been presented with the question. The subject has interested another group of students to whose opinion I am prone to give weight. I refer to the law writers in the Law School Journals of the Universities. They have spoken quite strongly in favor of the constitutionality of the Act and quite righteously against a result so contrary to their sense of fairness, as would follow a holding of unconstitutionality. I give a few reasons for my conclusion. (1) A determination of unconstitutionality should be avoided if at all possible. “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question [of constitutionality] may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598; Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611, 71 L.Ed. 1083; Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct." }, { "docid": "22445343", "title": "", "text": "the definition of “enemy” to include only those persons “resident within” enemy territory — a definition which does not include petitioner on the pleadings in this case. ' Section 2 (a) of the Trading with the Enemy Act. This represented a deliberate “relaxation” and “modification” of Congress’ power over enemy property. This policy of modification was followed throughout the World War I alien property program, culminating in the Settlement of War Claims Act of 1928 which authorized return of 80% of seized property to its former owners. World War II legislation over alien property Represented a complete reversal of the soft policy of World War I. In 1941, Congress extended the power of seizure and vesting to all property of “any foreign country or national thereof” in exercising its war power “to affirmatively compel the use and application of foreign property in a manner consistent with the interests of the United States.” In 1946, Congress added Section 32 to the Trading with the Enemy Act, authorizing administrative return of vested property subject to certain conditions, one of which prevented administrative return to a “citizen or subject of [an enemy] nation” who was “present . . . in the territory of such nation.” Finally, in the War Claims Act of 1948, Congress added Section 39 to the Trading with the Enemy Act; thereby expressing its “firm resolve not to permit the recurrence” of the World War I policy of returning enemy property. The House Committee on Interstate and Foreign Commerce, in reporting favorably upon the bill, stated: “The policy of nonreturn and noncompensation is a sound public policy which should be enacted into law. . It does not violate any concepts of international law or international morality. No essential difference exists between private property and public property in the case of Germany and Japan. For several years before World War II while Germany and Japan were preparing to make war upon the United States, property owned in the United States by the citizens of both of these countries was subject to rigid control of their respective governments. While the fiction of" }, { "docid": "2234186", "title": "", "text": "214, 65 L.Ed. 403, affirming Garvan v. $20,000 Bonds, 2 Cir., 265 F. 477, 479, in which there is the direct statement “If persons not alien enemies, or allies of alien enemies were given no means to protect their interests in such property the seizure would be unconstitutional as without due process of law; but they are given such remedies under section 9.” The defendant argues that the Court oi Claims has jurisdiction to decide claims against the government and also that the law implies a promise on the part of the government to make compensation for private property appropriated by it for public use, which is enforceable by the courts. It must suffice here to state that these remedies were in existence when the foregoing cases were decided and that this suit was brought in equity chiefly for an in junction against liquidation and not for compensation. “Acts of Congress are to be construed and applied in harmony with and not to thwart the purpose of the Constitution.” Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611, 612, 71 L.Ed. 1083; Russian Volunteer Fleet v. United States, 282 U.S. 481, 491, 51 S.Ct. 229, 75 L.Ed. 473; Becker Steel Co. v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 15, 80 L.Ed. 54. The legislative history of the Act does not disclose that this construction is inconsistent with the purposes of Congress in extending the War Powers of the President over nationals of foreign countries. The authorities cited by the defendant which hold that the court should act with great restraint in granting injunctions in cases in which important public or national interests are involved, especially in time of war, are not applicable. Discretion is not involved. None is left to the court. Congress, in which the ultimate power to declare public policy is vested, makes it mandatory that the Alien Property Custodian should in case of suit brought against him retain the property in his possession until final disposition of the suit. He would be acting without jurisdiction and beyond the powers delegated to him were he to" }, { "docid": "22445327", "title": "", "text": "of the term “enemy, national” in the framework of the Act, and the fact that the matters raised by this testimony were not touched upon in floor debate — all go far to. overcome any presumption that the claimant’s situation was considered by Congress and rejected. . Moreover, a decision for the Government would require us to decide debatable constitutional questions. In 1 suits by United States citizens, § 9 (a) has been construed, over the Government’s objection, to require repayment of just compensation when the Custodian has liquidated the vested assets. Becker Steel Co. v. Cummings, supra; Henkels v. Sutherland, 271 U. S. 298; see Central Union Trust Co. v. Garvan, 254 U. S. at 566; Stoehr v. Wallace, 255 U. S. 239, 245. Such a construction, it' is said, is necessary to preserve the Act from constitutional doubt. It is clear too that friendly aliens are protected by the Fifth Amendment requirement of just compensation. Russian Volunteer Fleet v. United States, 282 U. S. 481. The question which remains is whether a citizen in Guessefeldt’s position of a nation with which this country-is at war is deemed a friendly alien. More broadly, is any national of an enemy country within the reach of constitutional protection? The thrust of the Government’s argument is that § 39 bars any such claimant on the mere showing of his citizenship. Ex parte Kawato, 317 U. S. 69, holds that as a matter of common law as well as interpretation of the Trading with the Enemy Act, a resident enemy national, even though interned, must be permitted access to American cpurts. And The Venus, 8 Cranch 253, seems to say that at common and international law, in the absence of hostile acts, enemy status, at least for the purpose of trade, follows location and not nationality. Cf. Miller v. United States, 11 Wall. 268, 310-311. On the other side is Mr.-Justice (then Judge) Cardoza’s careful opinion in Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185, holding that a national of an enemy country, wherever resident, is an enemy alien and" }, { "docid": "22873653", "title": "", "text": "in a court of law, equity, or admiralty, if the United States were suable. The case of an alien friend is not excepted. Section 145 of the Judicial Code (U.- S. C., Tit. 28, § 250) gives to the Court of Claims jurisdiction of suits on similar claims against the United States without limit of amount. The authority eon- ferred upon the President by the Act of June 15, 1917, was exercised by him through the United States Shipping Board Emergency Fleet Corporation, and as the compensation fixed by that Corporation was not satisfactory to the petitioner, it became entitled under, the express terms of the Act to bring suit against the United States to recover the amount justly payable by reason of the requisition. The Act of June 15, 1917, makes no reference to section 155 of the Judicial Code with respect to alien suitors, and the question is whether that provision should1 be implied as establishing a condition precedent and the recovery thus be defeated. It is at once apparent that1 such an implication would lead to anomalous results. It would mean that, although the United States had actually taken possession of the property and was enjoying the advantages of its use, and the alien owner was unquestionably entitled to compensation at the time of the taking, it was the intention of the Congress that recovery should be denied, or at least be indefinitely postponed until the Congress made some other provision for the determination of the amount payable, if it appeared that citizens of the United States were not entitled to proseeute claims against the government of the alien’s country in its courts, or that the United States did not recognize the regime which was functioning in that country. We find no warrant for imputing to the Congress such an intention. “Acts of Congress are to be construed and applied in harmony with and not to thwart the purpose of the Constitution.” Phelps v. United States, supra. The Fifth Amendment gives to each owner of property his individual right. The constitutional right of owner A to compensation" }, { "docid": "22826489", "title": "", "text": "for Berlin 1979) (protections of Bill of Rights apply to friendly aliens in the American sector of West Berlin). The Supreme Court has also recognized that even non-resident aliens are entitled to the protection of the fifth amendment’s prohibition on unlawful takings. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 491-92, 51 S.Ct. 229, 232, 75 L.Ed. 473 (1931). These authorities, however, do not mandate the conclusion that excludable aliens such as the Haitian plaintiffs can claim equal protection rights under the fifth amendment with regard to parole. Russian Volunteer Fleet can be distinguished because it clearly does not implicate in any way the powers of the national government over immigration. When the government seizes the property of foreign nationals within this country, its actions do not fall within a sphere of plenary executive and legislative authority, and it therefore cannot claim that the aliens involved are entitled only to the degree of due process that Congress is prepared to extend them as a matter of grace. Similar considerations apply in the context of criminal prosecutions. When the government subjects an alien to the criminal process it is plainly no longer seeking to effectuate its power to control admission into the United States by removing the alien from this country. The arrests of the aliens in Wong Wing and Henry may have grown out of the Executive’s efforts to control the entry of foreigners into the United States, but the decision by government officials to subject them to criminal prosecution or punishment, rather than deportation, completely changed the nature of the proceedings. From that point forward any action taken by the government derived not from its power to control admission into this country, but from the powers of the Executive over law enforcement. The government’s actions in prosecuting Henry and imprisoning Wong Wing therefore fell outside the plenary power to control immigration that justifies the extraordinary executive and congressional latitude in that area. This critical distinction was emphasized by the Court in Wong Wing: No limits can be put by the courts upon the power of congress to" }, { "docid": "9738789", "title": "", "text": "question. The subject has interested another group of students to whose opinion I am prone to give weight. I refer to the law writers in the Law School Journals of the Universities. They have spoken quite strongly in favor of the constitutionality of the Act and quite righteously against a result so contrary to their sense of fairness, as would follow a holding of unconstitutionality. I give a few reasons for my conclusion. (1) A determination of unconstitutionality should be avoided if at all possible. “When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question [of constitutionality] may be avoided.” Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598; Phelps v. United States, 274 U.S. 341, 47 S.Ct. 611, 71 L.Ed. 1083; Russian Volunteer Fleet v. United States, 282 U.S. 481, 51 S.Ct. 229, 75 L.Ed. 473; Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748; United States v. Walter, 263 U.S. 15, 44 S.Ct. 10, 68 L.Ed. 137; Alabama State Federation of Labor etc. v. McAdory, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725. I wonder if this is just a paper rule. If not, what factual situation determines its application? Is it invocable only in state courts to prevent justices of peace from holding acts unconstitutional? If applicable to Federal courts, is it effective only in the Supreme Court? Rather seriously, I ask why should the inferior Federal courts apply the rule when in the Supreme Court the question of constitutionalty can seldom be determined by rules. It strikes me that the rule should either be applied or abandoned in inferior Federal courts. (2) Rules of construction applicable alike to private contract, statute or constitution, require that if there be inconsistency between two parallel provisions, one general and one specific, the specific shall control. Generaba specialibus non' derogant. “Words *" }, { "docid": "12020511", "title": "", "text": "be returned. The Supreme Court approved this practical solution of the problems involved in Becker Steel Co. v. Cummings, 296 U.S. 74 at page 79, 56 S.Ct. 15, at page 18, 80 L.Ed. 54, where it said: “Section 7 of the Trading with the Enemy Act conferred on the Alien Property Custodian authority summarily to seize property upon his determination that it was enemy owned, and such a seizure was lawful even though the determination were erroneous. Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403; Stoehr v. Wallace, 255 U.S. 239, 41 S.Ct. 293, 65 L.Ed. 604; Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51, 43 S.Ct. 486, 67 L.Ed. 858. But in thus authorizing the seizure of property as a war measure Congress did not attempt the confiscation of the property of citizens or alien friends.” This same thought is expressed in Central Trust Co. v. Garvan, 254 U.S. 554, 566, 41 S.Ct. 214, 215, 65 L.Ed. 403, as follows: “There can be no doubt that Congress has power to provide for an immediate seizure in war times of property supposed to belong to the enemy, * * * if adequate provision is made for a return in case of mistake.” As said in Lamar v. Browne, 92 U.S. 187, 196, 23 L.Ed. 650, necessarily, the custodian must act upon appearances. It is his official duty to seize and hold, leaving to the owners to make good their claim as against the capture, in the appropriate tribunal established for that purpose. Thus we have developed a clearly defined policy governing the vesting of enemy property and return of innocent property to a nonenemy owner. Plaintiff is, under the averments of her complaint, the owner of innocent American property, a friendly alien permanent resident of the United States and as such, entitled to constitutional guarantees. Thus, in Silesian-American Corp. v. Clark, 332 U.S. 469, 68 S.Ct. 179, 184, 92 L.Ed. 81, the court said: “The constitution guarantees to friendly aliens the right to just compensation for the requisitioning of their" }, { "docid": "15465305", "title": "", "text": "the United States. The Supreme Court has held that if agents of the federal government accomplish takings of private property, “[t]he action of the agent is the act of the government” and it is the federal government that is liable for suit, not the agent. Yearsley v. W.A. Ross Const. Co., 309 U.S. 18, 21-22, 60 S.Ct. 413, 84 L.Ed. 554 (1940) (citation and quotation marks omitted). In Yearsley, a private company, carrying out a government contract, built river dikes which destroyed privately-owned land. The property owners brought suit against the company, and the Supreme Court found that “if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will.” Id. at 20-21, 60 S.Ct. 413. Because the government had “impliedly promised to pay [compensation for any taking] and has afforded a remedy for its recovery by a suit in the Court of Claims ... there is no ground for holding its agent liable who is simply acting under the authority thus validly conferred.” Id. at 21-22, 60 S.Ct. 413. Rather, the suit must be brought against the United States. Thus, for example, when separate corporate entities act for the United States, the United States is liable for their takings. See, e.g., Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473 (1931) (United States bound to pay just compensation when Shipping Board Emergency Fleet Corporation, acting under legislative authority, requisitioned contracts for the construction of two vessels); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 440-41, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (holding state government liable for a physical taking, even though the activity in question was carried out by a private cable company); Casa de Cambio Comdiv S.A., de C.V. v. United States, 291 F.3d 1356, 1363 (Fed.Cir.2002) (recognizing that the federal government may be held liable for takings that are consummated through its “alter ego or agent”). So too when state agencies act as agents of the United States, the United States may incur" }, { "docid": "23311833", "title": "", "text": "United States that we are surprised it was made. Throughout our history the guarantees of the Constitution have been considered applicable to all actions of the Government within our borders — and even to some without. Cf. Reid v. Covert, 354 U.S. 1, 5, 8, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957). This country’s present economic position is due in no small part to European investors who placed their funds at risk in its development, rightly believing they were protected by constitutional guarantees; today, for other reasons, we are still eager to attract foreign funds. In Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 491-492, 51 S.Ct. 229, 75 L.Ed. 473 (1931), the Court squarely held that an alien friend is entitled to the protection of the Fifth Amendment’s prohibition of taking without just compensation — even when his government was no longer recognized by this country. And the Court has declared unequivocally, with respect to non-resident aliens owning property within the United States, that they “as well as citizens are entitled to the protection of the Fifth Amendment.” United States v. Pink, 315 U.S. 203, 228, 62 S.Ct. 552, 564, 86 L.Ed. 796 (1942). See also Guessefeldt v. McGrath, 342 U.S. 308, 317-319, 72 S.Ct. 338, 96 L.Ed. 342 (1952). It does not follow, however, that in dealing with the property of an alien the United States must be blind to the acts of the country of which he is a national ; the Constitution protects the alien from arbitrary action by our govment but not from reasonable response to such action by his own. The world today is not thé classical international law world of black squares and white squares, where everyone is either an enemy or a friend. We are not formally at war with Cuba but only in a technical sense are we at peace — as the Havana Conference, held since this appeal was argued, has dramatically-shown. The founders could not have meant to tie one of the nation’s hands behind its back by requiring it to treat as a friend a country" }, { "docid": "8887183", "title": "", "text": "or indicate that it must be located in this country. Nor does the text say that only American citizens may receive just compensation. Accordingly, the parties agree that a complaint does not have to allege that the government has appropriated property physically located in the United States in order to state a valid takings claim. See Turney v. United States, 126 Ct.C1. 202, 115 F.Supp. 457, 464-65 (1953) (rejecting argument that Takings Clause did not apply to property located in a foreign country); Seery v. United States, 130 Ct.Cl. 481, 127 F.Supp. 601, 602-03 (1955) (rejecting government’s argument that takings claims should be dismissed because private property at issue was located in Austria). They also agree that a claimant does not necessarily have to aver that he is a United States citizen or resident alien in order to make out a valid takings claim if his property is located in the United States. See Russian Volunteer Fleet v. United States, 282 U.S. 481, 491-92, 51 S.Ct. 229, 75 L.Ed. 473 (1931) (holding Takings Clause reached the claim of nonresident alien friend whose property the government seized when it was located in the United States). The parties disagree, however, over the legal implication of the particular facts of the instant case, where the claimant is a nonresident alien lacking substantial voluntary connection to this country and the allegedly taken property was situated on foreign soil. In the government’s view, this combination sounds the death knell for the appellants’ claim. The government relies on the Supreme Court’s decision in United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990), where the Court held that the Fourth Amendment did not apply to the warrantless search of a Mexican citizen’s home in Mexico in connection with a criminal investigation. The petitioner in Verdugo-Urquidez argued that the Fourth Amendment’s prohibition on unreasonable searches applied to and prohibited the search because the Court had in the past held that nonresident aliens enjoy certain rights under the Constitution. Id. at 270-71, 110 S.Ct. 1056. Among these rights was the right to just" }, { "docid": "12020513", "title": "", "text": "property by the United States. Russian Volunteer Fleet v. United States [282 U.S. 481, 489, 51 S.Ct. 229, 75 L.Ed. 473]. We must assüme that the United States will meet its obligations under the Constitution. Consequently, friendly aliens will be compensated for any property taken * * .” This, of course, refers to the guarantees of the Fifth Amendment, Russian Volunteer Fleet v. United States, 282 U.S. 481, 489, 51 S.Ct. 229. We think that the word “friendly” is as applicable to a loyal resident alien, even though of enemy nationality, as it is to one of our own citizens, and this seems to be the conclusion in other cases, such as Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732; Vowinckel v. First Federal Trust Co., 9 Cir., 10 F.2d 19, and Ex parte Kumezo Kawato, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58. The Supreme Court, itself, said, in Becker Steel Co. v. Cummings, 296 U.S. 74, 79, 56 S.Ct. 18: “The seizure and detention which the statute commands and the denial of any remedy except that afforded by section 9(a) would be of doubtful constitutionality if the remedy given were inadequate to secure to the nonenemy owner either the return of his property or compensation for it.” Thus if Section 39 should be interpreted as the Custodian insists it should be, serious doubt would arise as to its constitutionality, for such a construction would effectuate confiscation of the innocent private property of a friendly resident alien without compensation. Furthermore, the United States has consistently bound itself by treaty to accord to alien residents within its jurisdiction the right of access to American courts to that degree of protection for their person and property required by international law and just compensation and due process of law, if their property should be taken. See 11 Stat. 587, 44 Stat. 2132, 2397, 4441, 45 Stat. 2641, 47 Stat. 2135, 48 Stat. 1507, 49 Stat. 2659, including treaties with various foreign nations. We need no citation of authority to support the proposition that repeals by implication are never favored and" } ]

[ { "docid": "23331950", "title": "", "text": "as a whole. NLRB v. Brown, 1965, 380 U.S. 278, 291, 85 S.Ct. 980, 983, 13 L.Ed.2d 839, 849; Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Accordingly, if the Board’s determination is based upon such relevant evidence as a reasonable mind might accept as adequate to support it, we are not at liberty to deny enforcement simply because the evidence may also reasonably support other conclusions or because we might justifiably have reached a different conclusion had the matter come before us de novo. NLRB v. Cameo, Inc., 5th Cir. 1966, 369 F.2d 125. This “limited” scope of review does not, however, require us to abdicate our responsibility to the extent of merely “rubberstamping” our affirmance of the Board’s decision when, after full review of the record, including the evidence opposed to the Board’s views, we are unable conscientiously to conclude that the evidence supporting such decision is substantial. Universal Camera Corp. v. NLRB, supra, 340 U.S. at 488, 71 S.Ct. at 465, 95 L.Ed. at 467; see NLRB v. Brown, supra, 380 U.S. at 291, 85 S.Ct. at 988, 13 L.Ed.2d at 849. To justify enforcement of an order of the Board the evidence must do more than merely create a suspicion of the existence of facts upon which the order is based; indeed, a discriminatory act on the part of the employer is not in itself unlawful unless intended to prejudice an employee’s position because of his union activity, i. e., some element of antiunion animus is necessary. See Radio Officers’ Union, etc. v. NLRB, 1954, 347 U.S. 17, 42-44, 74 S.Ct. 323, 337, 98 L.Ed. 455, 478-479. Thus, in controversies involving employee discharges, the motive of the employer is the controlling factor, NLRB v. Brown, supra, 380 U.S. at 287, 85 S.Ct. at 985-986, 13 L. Ed.2d at 846, and, absent a showing of antiunion motivation, an employer may discharge an employee for a good reason, a bad reason, or for no reason at all. NLRB v. I. V. Sutphin, Co-Atlanta, Inc., 5th Cir., February 8, 1967, 373 F.2d" } ]

[ { "docid": "1536808", "title": "", "text": "must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. Id. at 490, 71 S.Ct. at 466, 95 L.Ed. at 468-69. See NLRB v. Brown, 380 U.S. 278, 290-91, 85 S.Ct. 980, 988, 13 L.Ed.2d 839, 848 (1965) (the exercise of “limited judicial review” does “not mean that the balance struck by the Board is immune from judicial examination and reversal in proper cases.”). Thus, while it is clear that we are to grant enforcement and sustain the Board’s findings if they are supported by substantial evidence, “we should deny enforcement if, after a full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board’s determinations is substantial.” Mueller Brass Co. v. NLRB, 544 F.2d 815, 817 (5th Cir. 1977). The fact that we are limited in our review of the Board’s choice between two equally plausible views, NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968), does not mean that we must rubberstamp that determination when it appears clearly on the record when viewed as a whole that the view credited was far less plausible than testimony which was discredited by the ALJ. See Mueller Brass, 544 F.2d at 817. The evidence in the record now before the court presents just such a case. As indicated earlier there is undisputed testimony that OMNI International Hotels received over 8000 applications for the" }, { "docid": "8776884", "title": "", "text": "Act by withdrawing recognition from the Union on April 9, 1986; by refusing to sign a collective-bargaining agreement with the Union; and by refusing to provide the Union with bargaining unit information. Bickerstaff filed a timely petition in this court to review and set aside the Board’s decision. The Board then filed its cross appeal for enforcement. This court has jurisdiction pursuant to 29 U.S.C. Sec. 160(e) and (f). STANDARD OF REVIEW In reviewing an order issued by the NLRB, the courts must accept the Board’s findings of fact, “if supported by substantial evidence on the record considered as a whole ...” 29 U.S.C. Sec. 160(e). This general standard of review, however, eludes precise definition. As interpreted by the Supreme Court in Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951), “[sjubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 477, 71 S.Ct. at 459. In searching “the whole record” for substantial evidence, a reviewing court “must take into account whatever in the record fairly detracts” from the Board’s fact finding as well as evidence that supports it. Id. at 487-88, 71 S.Ct. at 464-65. See Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981). The court is not free to substitute its judgment for that of the Board simply because the court would have made a different choice had the matter been before it de novo. Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465. On the other hand, this court is not a “rubber stamp” or the enforcement arm of the NLRB, Thomas Indus., Inc. v. NLRB, 687 F.2d 863, 866 (6th Cir.1982), and we must set aside the Board’s decision when the court “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465." }, { "docid": "22573008", "title": "", "text": "16 L.Ed.2d 682 (1966) ; N.L.R.B. v. Biscayne Television Corp., 337 F.2d 267, 268 (5th Cir. 1964) ; N.L.R.B. v. Izzi, 395 F.2d 241, 242-243 (1st Cir. 1968). Although the Company demonstrated that it did not employ any part-time employee during the back pay period, this fact is not conclusive. The record indicates that work was performed during that period which was substantially equivalent to Mead’s pre-strike job. The Board determined that the Company failed to carry its burden of showing that Mead’s part-time position was terminated during the back pay period for valid economic reasons. We are unable to conclude that this determination is not supported by substantial evidence on the record considered as a whole. See section 10(e) of the N.L.R.A., 29 U.S.C. § 160(e) (1970) ; Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). It is clear that the Board’s inclusion of lost Christmas bonuses as part of the back pay order was entirely proper. See N.L. R.B. v. United States Air Conditioning Corp., 336 F.2d 275, 277 (6th Cir. 1964) ; Moss Planing Mill Co., 110 NLRB 933, 935 (1954), enfd. as modified on other grounds, 256 F.2d 653 (4th Cir. 1958) ; Nabors v. N.L.R.B., 323 F.2d 686, 690 (5th Cir. 1963), cert. denied, 376 U.S. 911, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964) ; Wittock Supply Co., 171 NLRB No. 33, slip op. at 7-8, 68 LRRM 1043 (1968), enfd., 136 U.S.App.D.C. 106, 419 F.2d 688 (1969). It was similarly appropriate to include amounts compensating the strikers for money they had to expend on interim insurance coverage due to the Company’s improper recalcitrance in making rein statement offers. See N.L.R.B. v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 359-360, 365 F.2d 888, 892-893 (1966) ; Dayton Coal and Iron Corp., 101 NLRB 672, 672-673 (1952), enfd., 208 F.2d 394 (6th Cir. 1953) ; Deena Artware, Inc., 112 NLRB 371, 375 (1955), enfd., 228 F.2d 871 (6th Cir. 1955). See also Mastro Plastics Corp., 136 NLRB 1342, 1360 (1962), enfd., 354 F.2d 170 (2nd Cir. 1965), cert. denied," }, { "docid": "8776885", "title": "", "text": "substantial evidence, a reviewing court “must take into account whatever in the record fairly detracts” from the Board’s fact finding as well as evidence that supports it. Id. at 487-88, 71 S.Ct. at 464-65. See Soule Glass & Glazing Co. v. NLRB, 652 F.2d 1055, 1073 (1st Cir.1981). The court is not free to substitute its judgment for that of the Board simply because the court would have made a different choice had the matter been before it de novo. Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465. On the other hand, this court is not a “rubber stamp” or the enforcement arm of the NLRB, Thomas Indus., Inc. v. NLRB, 687 F.2d 863, 866 (6th Cir.1982), and we must set aside the Board’s decision when the court “cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view.” Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465. WITHDRAWAL OF RECOGNITION The Board’s decision that the Company violated Sections 8(a)(1) and (5) of the NLRA flowed from its conclusion that Bickerstaff unlawfully withdrew recognition from the Union. The issue before this court is whether substantial evidence exists on the record as a whole to support the Board’s decision. A. The Legal Standards The broad contours of the law in this area are well settled. Generally, a union that has been certified in a Board-conducted election or voluntarily recognized by an employer is entitled to a continuing presumption of majority status. Absent special circumstances, this presumption is irrebuttable for a one-year period following formal certification or voluntary recognition. See Ray Brooks v. NLRB, 348 U.S. 96, 75 S.Ct. 176, 99 L.Ed. 125 (1954). After the expiration of the certification year, the presumption of the Union’s continuing majority support continues but becomes rebuttable. J. Ray McDermott & Co. v. NLRB, 571 F.2d 850, 859 (5th Cir.1966); NLRB v. Gulfmont Hotel, 362 F.2d 588, 589 (5th Cir.1966). The employer may rebut that presumption, so as to" }, { "docid": "13945083", "title": "", "text": "JAMES C. HILL, Circuit Judge: This case is before the court upon the petition of Mueller Brass Co. (the “Company”) for review of, and upon cross-application for enforcement of, an order of the National Labor Relations Board (the “Board”). The issues presented are whether substantial evidence on the record as a whole supports the Board’s findings that the Company violated Sections 8(a)(1) and (3) of the National Labor Relations Act (the “Act”), 29 U.S.C.A. §§ 158(a)(1) and (3), by discharging employees Hansford Stone and James Roy Rogers and that the Company violated Section 8(a)(1) of the Act by threatening employees with adverse consequences if the union won the election; intimidating and warning employees against wearing union insignia; questioning employees as to whether anyone had talked to them about the union or had tried to get them to sign cards; and asking employees why they were wearing union buttons. Failing to find such evidence, we deny enforcement. The appropriate standard of review in this case is clear. We are to sustain the Board’s determinations if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 160(e); NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); International Organization of Masters, Mates and Pilots v. NLRB, 539 F.2d 554 (5th Cir. 1976). It is not our function to overturn the Board’s choice between two equally plausible inferences from the facts if the choice is reasonable, even though we might reach a contrary result if deciding the case de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); NLRB v. Mueller Brass Co., 501 F.2d 680, 683-684 (5th Cir. 1974); NLRB v. Standard Forge & Axle Co., 420 F.2d 508 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). However, even though our scope of review is thus limited, we should deny enforcement if, after a full review of the record, we are unable conscientiously to" }, { "docid": "13945084", "title": "", "text": "are supported by substantial evidence on the record considered as a whole. 29 U.S.C.A. § 160(e); NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); International Organization of Masters, Mates and Pilots v. NLRB, 539 F.2d 554 (5th Cir. 1976). It is not our function to overturn the Board’s choice between two equally plausible inferences from the facts if the choice is reasonable, even though we might reach a contrary result if deciding the case de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); NLRB v. Mueller Brass Co., 501 F.2d 680, 683-684 (5th Cir. 1974); NLRB v. Standard Forge & Axle Co., 420 F.2d 508 (5th Cir. 1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). However, even though our scope of review is thus limited, we should deny enforcement if, after a full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board’s determinations is substantial. Universal Camera Corp. v. NLRB, supra; NLRB v. Mueller Brass Co., 509 F.2d 704, 707 (5th Cir. 1975); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197, 200 (5th Cir. 1967). Background The Company began production in 1971 in Fulton, Mississippi. The union conducted unsuccessful organizing campaigns in 1971 and 1973, and began its third campaign in early 1974. In NLRB v. Mueller Brass Co., 501 F.2d 680 (5th Cir. 1974), this Court upheld the Board’s findings that the Company violated §§ 8(a)(1) and (3) of the Act by discharging an employee, and by making threats and suggesting that union organizers were being blacklisted by employees in the area. Significantly, this court found that “[t]here is no question from the record that the Company was strongly anti-union.” Id. at 685. Later, in NLRB v. Mueller Brass Co., 509 F.2d 704 (5th Cir. 1975), this court refused to enforce orders of the Board. This court found that “even considered against the Company’s prior antiunion" }, { "docid": "5998101", "title": "", "text": "review of an NLRB order, a court should grant enforcement if the Board correctly interpreted and applied the law and if its findings are supported by substantial evidence in the record, considered in its entirety. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-91, 71 S.Ct. 456, 464-66, 95 L.Ed. 456 (1951); NLRB v. Carbonex Coal Co., 679 F.2d 200, 203 (10th Cir.1982). Section 10(e) of the Act provides that as to questions of fact, the findings of the Board are conclusive if supported by “substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e) (Supp.1981). Substantial evidence has been defined as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Universal, 340 U.S. at 477, 71 S.Ct. at 459 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Although the statute does not expressly limit the scope of our review concerning questions of law, “the experienced judgment of the Board is entitled to great weight.” Crane Sheet Metal, Inc. v. NLRB, 675 F.2d 256, 257 (10th Cir.1982). We are not free to overturn the Board’s decision because we might have decided the matter differently. NLRB v. Pepsi-Cola Bottling Co. of Topeka, 613 F.2d 267, 270 (10th Cir.1980); see Universal, 340 U.S. at 488, 71 S.Ct. at 464-465; NLRB v. Albion Corp., 593 F.2d 936, 939 (10th Cir.1979). Rather, it is our responsibility to ascertain that the Board acts within reasonable bounds and that the supporting evidence is truly substantial. Universal, 340 U.S. at 490, 71 S.Ct. at 465-466; Pepsi-Cola, 613 F.2d at 270. A. Section 8(a)(1) Violations It is an unfair labor practice under section 8(a)(1) of the Act for an employer “to interfere with, restrain, or coerce employees” in the exercise of the rights of self-organization and collective bargaining guaranteed by section 7 of the Act. 29 U.S.C. § 158(a)(1) (1976); see id. § 157. The test for violations of section 8(a)(1) is not whether an attempt at coercion has succeeded or failed, but “whether the employer engaged" }, { "docid": "9449686", "title": "", "text": "It follows that the Board’s unit determinations are rarely disturbed. Under Section 10(e) of the Act, we, as the reviewing court, are given the power to “enter a decree enforcing, modifying, ... or setting aside in whole or in part” any order of the Board. 29 U.S.C. § 160(e). Our role is not “ ‘to stand aside and rubber stamp’ Board determinations that run contrary to the language or tenor of the Act.” NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975) (quoting NLRB v. Brown, 380 U.S. 278, 291, 85 S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)). Rather, we must assure that the Board’s unit determinations are not unreasonable, made arbitrarily or capriciously, or unsupported by substantial evidence. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947); Pacific Southwest Airlines v. NLRB, 587 F.2d 1032, 1037 (9th Cir.1978); NLRB v. Chicago Health & Tennis Clubs, Inc., 567 F.2d at 335; Ochsner Clinic v. NLRB, 474 F.2d 206, 209 (5th Cir.1973). This judicial review, however, is afforded “not for the purpose of weighing the evidence upon which the Board acted and perhaps to overrule the exercise of its discretion but to ‘guarantee against arbitrary action by the Board.’ ” May Department Stores Co. v. NLRB, 326 U.S. 376, 380, 66 S.Ct. 203, 206, 90 L.Ed. 145 (1945) (quoting S.Rep. No. 573, 74th Cong., 1st Sess. 14 (1935)) (footnote omitted). While we must assure that the Board fairly and reasonably considered all relevant factors, “the weight assigned by the agency to each factor it has fairly considered is a matter for it to determine. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464-465, 95 L.Ed. 456 (1951); Vermont Yankee Nuclear Power v. N.R.D.C., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978); Strycker’s Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227-228, 100 S.Ct. 497, 499-500, 62 L.Ed.2d 433 (1980).” Big Y Foods, Inc. v. NLRB, 651 F.2d at 48. In recognition of the Board’s expertise in matters" }, { "docid": "14034091", "title": "", "text": "v. FTC, 532 F.2d 207, 219 (2d Cir.1976); American Cyanamid Co. v. FTC, 363 F.2d 757, 772-73 (6th Cir.1966). “Substantial evidence is more than a mere scintilla,” and we require “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966); see NLRB v. Gimrock Constr., Inc., 247 F.3d 1307, 1309 (11th Cir.2001). While we afford the FTC some deference as to its informed judgment that a particular commercial practice violates the FTC Act, we review issues of law de novo. See FTC v. Indiana Federation of Dentists, 476 U.S. 447, 454, 106 S.Ct. 2009, 2015-16, 90 L.Ed.2d 445 (1986). In their arguments, the parties urge that Universal Camera provides the yardstick by which to measure the evidence at issue. Indeed, in 1951, the Supreme Court clarified the substantial evidence standard for reviewing an administrative agency’s decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In Universal Camera, the ALJ found an employee was lawfully discharged for insubordination rather than his appearance at an NLRB proceeding. The factual testimony directly conflicted, and the AL J’s finding clearly relied on a credibility determination. The Board reversed the holding. On judicial review, the court of appeals hesitated to consider the AL J’s initial ruling because the Administrative Procedure Act gave the Board “all the powers it would have had in making the initial decision.” 5 U.S.C. § 557(b). Thus, the Second Circuit affirmed the Board’s decision. The Supreme Court disagreed, and held that the plain language of the statute required a review of the record as a whole, which included the ALJ’s decision. Universal Camera, 340 U.S. at 493, 71 S.Ct. 456. Although Universal Camera involved the NLRB, and not the FTC, the results are applicable here. When we review a jury verdict, we ignore all evidence contrary to the verdict and then draw every reasonable inference" }, { "docid": "11813857", "title": "", "text": "N. L. R. B. v. Herman Sausage Co., 5 Cir. 1960, 275 F.2d 229, 231, points out that: “ * * * on review we must enforce the Board’s conclusion of bad faith negotiation if it ‘finds support in the record as a whole * * * “even though the court would justifiably have made a different choice had the matter been before it de novo.” ’ N. L. R. B. v. Fant Milling Co., 1959, 360 U.S. 301, 309, note 10, 79 S.Ct. 1179, 1184, 3 L.Ed.2d 1243, 1249, enforced on remand, 5 Cir., 1959, 272 F.2d 773.” See also Universal Camera Corporation v. National Labor Relations Board, 1951, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456; Oil City Brass Works v. National Labor Relations Board, 5 Cir. 1966, 357 F.2d 466, 469-470; cf. National Labor Relations Board v. Great Dane Trailers, Inc., 5 Cir., 1966, 363 F.2d 130 (decided June 22, 1966). With those principles in mind, we have carefully read and studied the record and the joint appendix and find that substantial evidence on the whole record supports the Board’s findings and conclusions. Its order is therefore enforced. . The Board’s decision and order are reported at 146 N.L.R.B. No. 58. In part, the Board’s order requires that the respondent “Upon request, bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement.” . 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq." }, { "docid": "969208", "title": "", "text": "RONEY, Circuit Judge: This is an action by claimant James T. Blanks under § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health, Education and Welfare denying him old age insurance benefits on the ground that he had failed to establish that he had reached 62 years of age, the minimum age for entitlement to such benefits. See § 202(a) of the Social Security Act, as amended, 42 U.S.C. § 402(a). The District Court, finding that the administrative decision was supported by substantial evidence, granted the Secretary’s motion for summary judgment. We reverse. The Social Security Act itself requires that we give conclusive weight to the Secretary’s findings of fact, if they are supported by substantial evidence. 42 U.S.C. § 405(g). Reviewing courts are not required, however, to stand aside and give rubber-stamp approval to administrative decisions which frustrate the congressional policy underlying a statute. NLRB v. Brown, 380 U. S. 278, 291, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Rather, our function is to review the entire body of evidence, including that which is opposed to the Secretary’s view. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). This is particularly true in cases such as this one, where the question before the Secretary is not one requiring the application of administrative expertise. In such cases we are called upon to examine the record closely. Merrell v. Gardner, 397 F.2d 65 (5th Cir. 1968), followed in Sadler v. Finch, 1A CCH Unemp.Ins.Rep. par. 15,725 (E.D.Ark., Feb. 27, 1970). Blanks claimed that he was born on November 25, 1905. The trial examiner made a factual finding that his correct birthdate was November 25,1907. The evidence before the trial examiner may be summarized as follows: Document Marshall County, Alabama School Census Record U. S. Census Record DeKalb County Family Bible Record Birth Certificate of Child of Appellant Application for Social Security Account Insurance Policy Insurance Policy Delayed Birth Certificate Application for Retirement Insurance Benefits Statement of Appellant's Older Brother born" }, { "docid": "2266671", "title": "", "text": "v. NLRB, 9th Cir. 1964, 335 F.2d 749, 753, 756. In Saunders v. United States, 1963, 114 U.S.App.D.C. 345, 316 F.2d 346, a government attorney had taken notes during his interview with a government witness. The appellate court held that the trial judge erred in failing to examine the notes to determine whether they were a substantially verbatim recital of what the witness had said. We believe that the trial examiner in the instant case erred for the same reason. Again, however, we conclude that the procedural defect did not prejudice respondent’s case. David Frechette simply gave his version of the negotiations; his testimony did not form the basis for any of the Board’s findings. If his testimony were disregarded entirely, we would still find substantial evidence in the record to justify enforcement of the order issued by the Board. II. Violations of Sections 8(a) (1), (a) (3), and (a) (5) As in all cases involving judicial review of administrative decisions, we begin with the often-repeated principle that the Board’s order must be sustained if supported by substantial evidence in the record considered as a whole. NLRB v. Brown, 1965, 380 U.S. 278, 85 S.Ct. 980, 983, 13 L.Ed.2d 839, 849; Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Accordingly, if the Board’s determination is based upon such relevant evidence as a reasonable mind might accept as adequate to support it, we are not at liberty to deny enforcement simply because the evidence may also reasonably support other conclusions or because we might justifiably have reached a different conclusion had the matter come before us de novo. NLRB v. Camco, Inc., 5th Cir. 1966, 369 F.2d 125, 127. With this standard in mind, we turn to the unfair labor practices found by the Board. Section 8(a) (1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 gives employees the right to organize, to bargain collectively, to engage in concerted activities for the purpose of" }, { "docid": "17878523", "title": "", "text": "union membership. The court’s review of the Board’s factual conclusions is highly deferential, upholding a decision if it is supported by substantial evidence considering the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); Power Inc., 40 F.3d at 417; Union-Tribune Publishing Co. v. NLRB, 1 F.3d 486, 491 (7th Cir.1993); 29 U.S.C. § 160(e). “So long as the Board’s findings are reasonable, they may not be displaced on review even if the court might have reached a different result had the matter been before it de novo.” Clark & Wilkins Indus., Inc. v. NLRB, 887 F.2d 308, 312 (D.C.Cir.1989), cert. denied, 495 U.S. 934, 110 S.Ct. 2177, 109 L.Ed.2d 505 (1990); see Universal Camera, 340 U.S. at 488, 71 S.Ct. at 465; Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1179 (6th Cir.1985). The court’s review of the Board’s determination with respect to motive is even more deferential. Motive is a question of fact that may be inferred from direct or circumstantial evidence. Power Inc., 40 F.3d at 418; Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1168 (D.C.Cir.1993), cert. denied, - U.S. -, 114 S.Ct. 1368, 128 L.Ed.2d 45 (1994); Great Lakes Chem. Corp., 967 F.2d at 627. In most cases only circumstantial evidence of motive is likely to be available. NLRB v. Ship Shape Maintenance Co., 474 F.2d 434, 439 (D.C.Cir.1972); NLRB v. Vought Corp.—MLRS Sys. Din, 788 F.2d 1378, 1382 (8th Cir.1986); Intermountain Rural Elec. Ass’n v. NLRB, 782 F.2d 754, 759 (10th Cir.), cert. denied, 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Abilene Sheet Metal, Inc. v. NLRB, 619 F.2d 332, 339 (5th Cir.1980); NLRB v. Warren L. Rose Castings, Inc., 587 F.2d 1005, 1008 (9th Cir.1978). Drawing such inferences from the evidence to assess an employer’s hiring motive invokes the expertise of the Board, and consequently, the court gives “substantial deference to inferences the Board has drawn from the facts,” including inferences of impermissible motive. Gold Coast Restaurant Corp. v. NLRB, 995 F.2d 257, 263 (D.C.Cir.1993);" }, { "docid": "1536807", "title": "", "text": "testimony against OMNI’s rebuttal and suggested that any reasons given for not hiring these applicants, other than lack of English-speaking ability, were admissions against interest. He also dis credited OMNI’s testimony because of the alleged inconsistencies between the poor work records cited as reasons for not hiring these applicants and the laudatory language in the form letters sent to the applicants when they were not hired. Sections 10(e) and (f) of the National Labor Relations Act, 29 U.S.C. §§ 160(e) and (f) provide that “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” This provision puts rather strict limits on the review to which decisions of the National Labor Relations Board may be subjected. It has been clear, however, since the seminal case of Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951) that the Act was not intended to make the Courts of Appeals rubberstamps for the Board’s determinations. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board’s findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board’s decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. Id. at 490, 71 S.Ct. at 466, 95 L.Ed. at 468-69. See NLRB v. Brown, 380 U.S. 278, 290-91, 85 S.Ct. 980, 988, 13 L.Ed.2d 839, 848 (1965) (the exercise of “limited judicial review” does “not mean that the balance struck by the Board is immune from judicial examination" }, { "docid": "2266672", "title": "", "text": "supported by substantial evidence in the record considered as a whole. NLRB v. Brown, 1965, 380 U.S. 278, 85 S.Ct. 980, 983, 13 L.Ed.2d 839, 849; Universal Camera Corp. v. NLRB, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456. Accordingly, if the Board’s determination is based upon such relevant evidence as a reasonable mind might accept as adequate to support it, we are not at liberty to deny enforcement simply because the evidence may also reasonably support other conclusions or because we might justifiably have reached a different conclusion had the matter come before us de novo. NLRB v. Camco, Inc., 5th Cir. 1966, 369 F.2d 125, 127. With this standard in mind, we turn to the unfair labor practices found by the Board. Section 8(a) (1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 gives employees the right to organize, to bargain collectively, to engage in concerted activities for the purpose of collective bargaining and also the right to refrain from engaging in any or all of these activities. Section 8(a) (5) makes it an unfair labor practice for an employer to refuse to bargain in good faith with properly selected representatives of the employees. The Board based its finding that these two sections were violated on the company’s whole course of conduct between May and August, 1964 but particularly on statements allegedly made by Mr. John Wallace to the employees. Two employees — Frank Edward Cogdel, the shop steward, and John Wesley Cogdel— testified that on May 15, 1964 Mr. Wallace read the entire collective-bargaining agreement to all of the employees and then proceeded to tell them that he was determined to “get rid of the union.” Frank Edward Cogdel further testified that on two occasions in June Mr. Wallace told him that there was no need for a union and that the employees need not be concerned about a cut in pay if they would abandon it. Quincy Knox (the hospitalized employee who joined the" }, { "docid": "13631399", "title": "", "text": "did not preserve this challenge for review by the Board or this Court. II. L & B contends that the Board’s finding/conclusion that the seasonal “extra” employees hired in a prior growing season at Center, Colorado, did not have a reasonable expectation of reemployment and thus were not part of the bargaining unit is not supported by substantial evidence in the record as a whole. We disagree. It is uncontroverted that (a) of the fourteen “extra” or seasonal employees hired by L & B during the year 1981, only one of them worked for L & B during the' 1980 season, (b) the employment of “extra” employees is sporadic and casual on an “as needed” basis, and (c) L & B did not present evidence that it gave preference to any “extra” seasonal employee who had worked for the company previously. “[A]s to questions of fact, the Board’s findings are conclusive and binding if supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474 [71 S.Ct. 456, 95 L.Ed. 456] (1951); N.L.R.B. v. First National Bank of Pueblo, 623 F.2d 686, 691 (10th Cir.1980).” Crane Sheet Metal, Inc. v. N.L.R.B., 675 F.2d 256, 257 (10th Cir.1982). See also, 29 U.S.C. § 160(e); Interior Alterations, Inc. v. N.L.R.B., 738 F.2d 373 (10th Cir.1984). In Crane, supra, the NLRB reversed the decision of the AU. Our standard of review does not change even though the NLRB disagrees with the findings of the AU. Artra Group, Inc. v. N.L.R.B., 730 F.2d 586, 590 (10th Cir.1984). In Burk Bros. v. N.L.R.B., 117 F.2d 686 (3rd Cir.1941), cert. denied., 313 U.S. 588, 61 S.Ct. 1110, 85 L.Ed. 1543 (1941), the Court held that the duty of the NLRB to make findings cannot be delegated to an AU and if there is substantial evidence in support of the Board’s findings which are contrary to those of the AU, they cannot be set aside simply because they differ. The NLRB is empowered to draw permissible inferences from credible testimony. N.L.R.B. v. Dover Corp., 535 F.2d 1205 (10th Cir.1976), cert." }, { "docid": "18935168", "title": "", "text": "the Board to modify its decision in the representation proceeding. Micro Pac. Dev., Inc., 326 N.L.R.B. No. 20 at 1 (Aug. 19, 1998). Accordingly, the Board concluded that Saipan’s refusal to bargain and to furnish requested information violated the NLRA. The Board required Saipan to cease its unfair labor practices, post a remedial notice, bargain with the Union upon request and supply the requested information. See id. at 2. Saipan then petitioned this Court to review the Board’s decision and the NLRB cross-applied for enforcement of its order. II. DISCUSSION Pursuant to section 10 (e) and (f) of the NLRA, 29 U.S.C. § 160(e), (f), we will reverse the Board if, “upon reviewing the record as a whole, we conclude that the Board’s findings are not supported by substantial evidence or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case.” International Union of Electronic, Elec., Salaried. Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536 (D.C.Cir.1994) (quotations omitted). 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.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (“[A] reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board’s view”). Moreover, the Board “is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,-, 118 S.Ct. 818, 829,139 L.Ed.2d 797 (1998). A. Supervisors Section 2(3) of the NLRA excludes from the term “employee” “any individual employed as a supervisor.” 29 U.S.C. § 152(3). Section 2(11) defines “supervisor” as follows: any" }, { "docid": "13631400", "title": "", "text": "95 L.Ed. 456] (1951); N.L.R.B. v. First National Bank of Pueblo, 623 F.2d 686, 691 (10th Cir.1980).” Crane Sheet Metal, Inc. v. N.L.R.B., 675 F.2d 256, 257 (10th Cir.1982). See also, 29 U.S.C. § 160(e); Interior Alterations, Inc. v. N.L.R.B., 738 F.2d 373 (10th Cir.1984). In Crane, supra, the NLRB reversed the decision of the AU. Our standard of review does not change even though the NLRB disagrees with the findings of the AU. Artra Group, Inc. v. N.L.R.B., 730 F.2d 586, 590 (10th Cir.1984). In Burk Bros. v. N.L.R.B., 117 F.2d 686 (3rd Cir.1941), cert. denied., 313 U.S. 588, 61 S.Ct. 1110, 85 L.Ed. 1543 (1941), the Court held that the duty of the NLRB to make findings cannot be delegated to an AU and if there is substantial evidence in support of the Board’s findings which are contrary to those of the AU, they cannot be set aside simply because they differ. The NLRB is empowered to draw permissible inferences from credible testimony. N.L.R.B. v. Dover Corp., 535 F.2d 1205 (10th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). The issue as to what unit is appropriate for bargaining rests in the sound discretion of the NLRB. 29 U.S.C. § 159(b); Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Newspaper Printing Corp. v. N.L.R.B., 625 F.2d 956 (10th Cir.1980), cert. denied, 450 U.S. 911, 101 S.Ct. 1349, 67 L.Ed.2d 335 (1981). In determining whether the NLRB’s exercise of discretion is not unreasonable, arbitrary and unsupported by the evidence, we must carefully review the record as a whole. N.L.R.B. v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965); Beth Israel Hosp. v. Geriatric Cen. v. N.L.R.B., 688 F.2d 697 (10th Cir.1982) (en banc), cert. dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982). We have done so. We hold that the Board’s conclusion that the employees hired as “extras” in a prior growing season had no reasonable expectation of reemployment in the bargaining unit at Center, Colorado, is supported by substantial" }, { "docid": "6364114", "title": "", "text": "268 N.L.R.B. 493, 497 (1984). Once a prima facie violation has been established, the burden shifts to the employer to show, as an affirmative defense, that it would have taken the same action even absent the protected concerted activity. NLRB v. Transportation Management Corp., 462 U.S. 393, 395, 402-03, 103 S.Ct. 2469, 2471, 2475, 76 L.Ed.2d 667 (1983). Wilson raises arguments concerning each of the four elements and also raises an affirmative defense^ Before turning to these arguments, we note that our standard of review affords great deference to the Board’s affirmation of the AU’s findings. We will enforce an order of the Board if the Board has correctly applied the law and its factual findings are supported by substantial evidence on the record considered as a whole, even though we might have reached a different decision had the matter been before us de novo. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951); Hall v. NLRB, 941 F.2d 684, 687-88 (8th Cir.1991). 1. Concerted Activity Wilson argues that Ruth Shell’s telephone call to the union was not concerted activity. It maintains that Ruth Shell called the union only on behalf of her son and not on behalf of the other three members of the shipping and receiving department. Wilson’s argument, however, is predicated on an erroneous definition of concerted activity. Concerted activity has been defined to include the activity of an individual employee when the employee is acting on behalf of only one other employee. See NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 831, 104 S.Ct. 1505, 1511, 79 L.Ed.2d 839 (1984); NLRB v. Henry Colder Co., 907 F.2d 765, 768 (7th Cir.1990) (citing City Disposal, 465 U.S. at 831, 104 S.Ct. at 1511); El Gran Combo de Puerto Rico v. NLRB, 853 F.2d 996, 1002 (1st Cir.1988) (citing City Disposal, 465 U.S. at 831, 104 S.Ct. at 1511); Meyers Indus., Inc., 281 N.L.R.B. 882 (1986); Meyers Indus., Inc., 268 N.L.R.B. at 497. Accordingly, Ruth Shell was engaged in a concerted activity even if she was acting only on" }, { "docid": "21232736", "title": "", "text": "are binding on the reviewing court. This conclusiveness is required even where the court might have drawn different inferences, for the Act commits the resolution of equally conflicting inferences to the Board. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); NLRB v. Camco, Inc., 340 F.2d 803 (5 Cir. 1965); Saginaw Furniture Shops, Inc. v. NLRB, 343 F.2d 515 (7 Cir. 1965); Duo-Bed Corp. v. NLRB, 337 F.2d 850 (10 Cir. 1964), cert. den. 380 U.S. 912, 85 S.Ct. 897, 13 L.Ed.2d 798; Martin Sprocket & Gear Co. v. NLRB, 329 F.2d 417 (5 Cir. 1964); see also, Great Atlantic & Pacific Tea Co. v. NLRB, 354 F.2d 707 (5 Cir. 1965) at 709; NLRB v. Mira-Pak, Inc., 354 F.2d 525 (5 Cir. 1965) at 527. The test is whether taking the record as a whole the Board reasonably and legitimately could have drawn the secondary inference that it drew. This case presents one more situation involving the “crucial” period when the union seeks to organize a plant. Congress sought uniformity in the fact-finding process by entrusting it to a Board which sees all of the cases involving these highly specialized problems, and thereby develops expert knowledge. The Board is in a better position than are the courts to know what inferences are most appropriate during this crucial stage of organization. We cannot say that the secondary inferences drawn by the Board in the instant case are unreasonable. We find that there is substantial evidence, taking the record as a whole, to support the Board’s finding that Hammock was fired in part, if not entirely, because of his testimony. A major part of the confusion in this case comes from the injection of a false issue in the Trial Examiner’s conclusion, as stated by the Board: “From his consideration of the Board decisions in Better Monkey Grip, 115 NLRB 1170, enfd. 243 F.2d 836 (C.A. 5), cert. denied 353 [355] U.S. 864 [78 S.Ct. 96, 2 L.Ed. 2d 69] 355 U.S. 900 [78 S.Ct. 261, 2 L.Ed.2d 197] and Dal-Tex Optical, 131 NLRB" } ]

[ { "docid": "14467445", "title": "", "text": "on the difference between mental illness and insanity. The Appellate Court rejected Weismiller’s direct challenges to the Illinois GBMI statutes on the merits. The district court found that Weismiller was barred from raising his challenges to the jury instructions by his state procedural default and that he had not established “cause” and “prejudice” to excuse that default as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Then, the court rejected his direct challenges to the statute on the merits. II. We agree with the district court that the petitioner’s failure to object to the jury instructions in his state court trial precludes him from raising challenges to them in this collateral proceeding. A state procedural bar will not be lifted to allow federal habeas corpus review absent a showing of “cause” for the procedural default, and “prejudice” resulting therefrom. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982); Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; Cartee v. Nix, 803 F.2d 296, 300 (7th Cir.1986). Such a procedural bar plainly exists in this case, and petitioner has failed to make the requisite showing. Petitioner claims that the “cause” for his failure to raise the issue of the allegedly defective jury instructions at his trial was “ineffective assistance of counsel.” Petitioner’s Br. at 26-27. However, the Supreme Court has recently made clear that mere attorney ignorance or inadvertence is insufficient cause to avoid a procedural default. Murray v. Carrier, — U.S.-, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). According to the Court, “So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.” Id., 106 S.Ct. at 2645-46 (emphasis added); see also, Cartee, 803 F.2d at 300-01. Petitioner" } ]

[ { "docid": "4051993", "title": "", "text": "could have raised on direct appeal. The United States District Court held a three-day hearing to examine Harris' claim of ineffective assistance of counsel in his petition for habeas corpus relief and determined that Harris’ claim should be rejected on its merits. II. The state urges us to find that the district court erred in ruling that Harris had not waived his right to present his claim of ineffective assistance of trial counsel by failing to raise the issue on direct appeal. Failure to raise an issue that could have been raised on direct appeal waives the issue for the purposes of post-conviction review. People v. Edmonds, 79 Ill.App.3d 33, 34 Ill.Dec. 555, 398 N.E.2d 230 (1st Dist.1979). An issue which precludes a state appellate court from addressing the merits of a claim, also precludes a federal court, on a habeas corpus petition, from addressing the merits of the claim. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983). If, however, the state court ignores the procedural default and addresses the claim on its merits, a federal court is not precluded from reaching the merits of the claim in a petition for habeas corpus relief. United States ex rel. Williams v. Franzen, 687 F.2d 944 (7th Cir.1982). As here, the defendant in Williams failed to present a claim on direct appeal, first asserting it in a state petition for post-conviction relief. Without addressing waiver, the state court reached the merits of Williams’ claim. On habeas review, the district court noted: The policies underlying deference to a state procedural default are inapplicable where the state itself does not apply or enforce the rule. When a state court does not rely on a waiver of a constitutional claim, but goes beyond the alleged waiver to rule on the merits, a federal court can also reach the merits of the claim without the cause-prejudice standard of Wainwright v. Sykes being met. Id. at 951. Thus, a state court’s complete failure to note waiver allows a federal court" }, { "docid": "14528455", "title": "", "text": "of Wisconsin, relying on State v. Witkowski, 163 Wis.2d 985, 473 N.W.2d 512, 514 (Wis.Ct. App.1991), decided the issue of ineffective assistance of postconviction/appellate counsel on the ground that the court would not readdress issues that had been litigated previously. See R.ll, Ex.F. at 5. Our case law firmly establishes that only a procedural default will bar federal habeas review. In Moore v. Bryant, 295 F.3d at 774, we concluded: [I]f the decision of the last state court to which the petitioner presented his federal claims fairly appears to rest primarily on the resolution of those claims, or to be interwoven -with those claims, and does not clearly and expressly rely on the procedural default, we may conclude that there is no independent and adequate state ground and proceed to hear the federal claims. Id. (citing Harris v. Reed, 489 U.S. 255, 263-65, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)); see Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir.2002). Here, the Court of Appeals of Wisconsin based its disposition of the ineffective assistance of post-conviction/appellate counsel claim on its conclusion that the merits of the claim had been resolved previously. Such a merit-based determination is not a bar to further consideration in a federal habeas action; “[flederal review is precluded only by procedural forfeitures, not by res judicata concerns.” Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir.1997) (quotation marks and citations omitted); see also Moore, 295 F.3d at 776 n. 1. Consequently, the district court erred in its determination that the issue of ineffective assistance of postcon-viction/appellate counsel was barred by a procedural default. Accordingly, this issue must be remanded to the district court for further proceedings. C. Although agreeing that, for the reasons explained in the earlier section, Mr. Page may challenge his postconviction counsel’s performance, the State has one reservation to this concession. Wisconsin takes the view that Mr. Page is not entitled to raise in a federal forum postconviction counsel’s failure to raise the alleged inadequate performance of trial counsel. In the State’s view, Mr. Page waived the right to contest ineffective assistance of trial" }, { "docid": "14773545", "title": "", "text": "raise the issue of ineffective assistance of trial counsel on appeal. The State suggests that appellate counsel was appropriately “winnowing out” a weak argument to focus on stronger claims. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The magistrate found, however, and we agree, that failing to raise the issue amounted to ineffective assistance of appellate counsel. This failure prevented Barnard from obtaining a review on the claim in the appellate court, a review which, if unfavorable, could have been followed by a second review in the Supreme Court of Illinois. As we have demonstrated, trial counsel denied Barnard his sixth amendment right to effective assistance of counsel by failing to advance Barnard’s only defense: justification. And appellate counsel was equally ineffective in failing to raise the issue for appellate review. III. CONCLUSION For the above-mentioned reasons, the magistrate’s order granting Barnard’s petition for a writ of habeas corpus is affirmed. Execution of the writ is stayed on condition that the State of Illinois grant Barnard a new trial on the charges resulting in his conviction within a reasonable time not to exceed ninety days, and diligently and without delay prosecute the charges to final conclusion. Barnard is not entitled to an unconditional release; his request to be released on bail pending the outcome of the new trial is therefore de nied. See Walberg v. Israel, 776 F.2d 134 (7th Cir.), cert. denied, — U.S.-, 106 S.Ct. 546, 88 L.Ed.2d 475 (1985). Affirmed. . Because Barnard presented his claim of ineffective assistance of counsel to the Supreme Court of Illinois, and the court ruled on it, he has satisfied the exhaustion requirement. Wallace v. Duckworth, 778 F.2d 1215, 1219 (7th Cir.1985). . Federal habeas corpus review is precluded when a state appellate court affirms a state trial court decision on the \"twin grounds” of (1) lack of merit for the constitutional claim and (2) the petitioner’s failure, without justification, to comply with a state procedural rule, unless of course the petitioner demonstrates in federal court cause and prejudice for the procedural default. Goins v. Lane," }, { "docid": "16315953", "title": "", "text": "MEMORANDUM AND ORDER DENYING PETITION FOR HABEAS CORPUS JOHN W. OLIVER, Senior District Judge. I. This State prisoner habeas corpus case presents two questions: (1) whether some provision in the Constitution of the United States requires a State trial court to accept a plea bargain based on an “Alford” plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and (2) whether petitioner’s trial counsel’s assistance was ineffective under the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Attorney General concedes in his response to this Court’s order to show cause that “petitioner has exhausted available state remedies for his present claims.” Response at 3. We have reviewed and considered petitioner’s petition for federal habeas corpus, the transcripts of the record made on petitioner’s direct appeal, the transcript of the evidentiary hearing accorded petitioner pursuant to Missouri Rule 27.26, the decisions made by the Missouri trial and appellate courts, and the briefs filed by the parties 'in both those State court proceedings. We find and conclude that the petitioner’s petition for habeas corpus should be denied on the merits for the reasons stated in part III of this memorandum opinion. It is necessary, however, that we first discuss the Attorney General’s untenable argument that the petitioner suffered an “independent state procedural” default that precludes this Court from reaching the merits of petitioner’s claims. II. A. The Attorney General properly conceded that the petitioner exhausted both claims alleged in his federal habeas corpus petition. The records before the Court establish that petitioner’s refused “Alford” plea claim was exhausted on direct appeal and that his ineffective assistance of trial counsel claim was exhausted by his appeal of the State trial court’s denial of Rule 27.26 relief. The Attorney General’s response nevertheless argued that both “of petitioner’s claims are subject to adequate and independent state procedural grounds precluding review.” Response at 4. That argument was based on the fact that petitioner, after the Missouri Court of Appeals had affirmed his conviction on direct appeal, failed to file a" }, { "docid": "5395490", "title": "", "text": "to raise the issue. In addition to alleging the above errors attributable to ineffective assistance of trial counsel, Stone alleged his appellate counsel afforded ineffective assistance of counsel for failure to raise the same errors on appeal. The supreme court rejected this claim on the same grounds that it rejected the claims on the basis of the trial record. Finally, just to cover all bases, Stone alleged that his post-conviction counsel below had also been ineffective. The supreme court rejected this claim as well. E. Petition for Habeas Corpus Armed with new counsel, Stone moved on to federal court to pursue the same claims rejected by the Indiana Supreme Court in his direct appeal and collateral attack. Stone also raised a number of new claims. The district court dismissed the new claims as procedurally defaulted because Stone failed to raise them in state court. See Resnover v. Pearson, 965 F.2d 1453, 1458 (7th Cir.1992), cert. denied, 508 U.S. 962, 113 S.Ct. 2935, 124 L.Ed.2d 685 (1993) (issue that could have been presented to state court, but was not, may not be addressed in federal habeas corpus proceedings). Seven assertions remained, six of which have been pursued on this appeal: (1) the lack of probable cause for Stone’s arrest; (2) the admission of James’ statement; (3) the state’s failure to notify Stone’s parents prior to obtaining his confession; (4) the admission of Means’ identification of Stone; (5) the admission of codefendant Williams’ redacted confession; and (6) the claim overriding all the others — the ineffective assistance of counsel at trial, on appeal, and in post-conviction proceedings, as demonstrated by the failure to advance the above arguments. The district court thoroughly considered and rejected these claims and denied the petition. II. When considering a district court’s denial of a petition for writ of habeas corpus we review questions of law de novo, Verdin v. O’Leary, 972 F.2d 1467, 1481 (7th Cir.1992), but defer to factual determinations by the state and appellate courts as presumptively correct. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d" }, { "docid": "11720782", "title": "", "text": "status report with the court. See 133 F. 3d 1253, 1269 (CA9 1998). Walter La-Grand informed Burke that he did not desire a new attorney and requested that Burke continue to represent him. Ibid. Nevertheless, after Burke learned that Karl LaGrand was pursuing ineffective-assistanee-of-counsel claims, Burke moved to withdraw as counsel. The District Court denied this motion on the ground that ‘Walter LaGrand entered a waiver of any potential claims of ineffective assistance of counsel and Mr. Burke indicated to the Court that he believes no such grounds existed.” LaGrand v. Lewis, 883 F. Supp. 451, 456, n. 3 (1995). The Ninth Circuit affirmed, holding that “[w]hen Walter waived the offer of new counsel, he was waiving the benefits of new representation, among which would potentially have been the presentation of this sort of [ineffective-assistance claim].” 133 F. 3d, at 1269. Among the claims a writ of habeas corpus was the claim that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The District Court found the claim to be proeedurally defaulted because Walter LaGrand had failed to raise it either on direct appeal or in his petition for state postconviction relief, when the sole method of execution was by way of lethal gas. On appeal, the Ninth Circuit did not reach the issue of procedural default because it found the claim was not ripe until and unless LaGrand chose gas as his method of execution. Id., at 1264. The petition for writ of habeas corpus was denied. Id., at 1269. In February 1999, Karl LaGrand filed a successive state petition for postconviction relief raising the claim that execution by lethal gas constituted cruel and unusual punishment. The trial court found the claim moot and precluded due to Karl LaGrand’s failure to raise the claim in prior state court proceedings, and the Arizona Supreme Court denied review. Karl LaGrand again raised the claim in a second federal habeas corpus petition. The District Court again found the claim proeedurally defaulted and concluded that Karl LaGrand had failed to establish cause and prejudice" }, { "docid": "15719380", "title": "", "text": "Supreme Court again denied review. Johnson then filed a writ of habeas corpus in the United States District Court for the Eastern District of Wisconsin pursuant to 28 § U.S.C. 2254, claiming ineffective assistance of appellate and trial counsel. The district court found Johnson’s claims were not defaulted because the state court ruling was not an adequate and independent procedural ground barring federal review. The court then held that Johnson’s claims lacked merit and denied the writ, but granted Johnson- a certificate of appealability for both of his ineffective assistance of counsel claims. Johnson timely appealed. II. Analysis A. Procedural Default We must first determine whether Johnson’s ineffective assistance of counsel claims were procedurally defaulted. The district court held they were not, and we review a determination of procedural default de novo. Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir.2010). If a claim was held to be defaulted by a state court on the basis of an adequate and independent procedural ground, federal habeas review is at an end unless a petitioner can show cause for the default and prejudice attributable thereto. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). A state procedural ground is independent if it was expressly relied on by the state court in rejecting the claim, and it is adequate if it is a clearly established and consistently followed state practice at the time it is applied. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Smith v. McKee, 598 F.3d 374, 382 (7th Cir.2010). Procedure applied in an unprincipled, inconsistent, or freakish manner is inadequate and will not preclude federal habeas review. Barks- dale v. Lane, 957 F.2d 379, 382 (7th Cir.1992); Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). In finding that Johnson’s ineffective assistance of counsel claims were not defaulted, the district court relied on our holding in Page v. Frank, 343 F.3d 901 (7th Cir.2003). In Page, a similarly situated Wisconsin prisoner attempted to raise a claim of ineffective assistance of counsel on state collateral attack. The Wisconsin courts" }, { "docid": "13128672", "title": "", "text": "a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” Id. at 83, 105 S.Ct. 1087; see also Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004) (setting forth elements of an Ake claim). Lynd’s counsel requested and received the appointment of an expert witness. Ultimately, for reasons discussed below, the trial court excluded the expert’s testimony. Lynd argues that this exclusion constituted a de facto denial of his request for expert assistance, and that such denial rendered the trial fundamentally unfair. We may not consider the merits of this argument here because Lynd failed to raise it on direct appeal in the state courts. The first time Lynd raised his Ake claim was in his state habeas petition. Under Georgia law, a petitioner’s “failure to ... pursue [an issue] on appeal ordinarily will preclude review by writ of habeas corpus,” unless the petitioner can show either “adequate cause” for his failure to pursue the issue and “actual prejudice,” or that a miscarriage of justice, caused by a substantial denial of constitutional rights, will occur. Black v. Hardin, 255 Ga. 239, 336 S.E.2d 754, 755 (1985). Because Lynd failed to raise his Ake claim on direct appeal, the state habeas court found that Blackprecluded review. The state habeas court also found that Lynd failed to establish that he qualified for an exception to the procedural bar. Accordingly, the state habeas court dismissed the claim as procedurally barred by a rule of state law. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir.1999) (Procedural default arises when “the state court correctly applies a procedural default principle of state law to arrive at the conclusion that the petitioner’s federal claims are barred.”). A procedural bar precludes federal review when it provides an adequate and independent state ground for denial of a claim. See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir.1995). Because the state habeas court found that these claims" }, { "docid": "8248", "title": "", "text": "ineffective assistance of trial counsel as waived because Pole had also alleged ineffective assistance of appellate counsel. The state post-conviction court thus addressed Pole’s claim of ineffective assistance on the merits, expressly finding that, under these circumstances, “strict application of waiver should be relaxed to give defendant a fair opportunity to present his argument.” People v. Pole, No. 1-99-0858, at 4, 2001 WL 34149729 (IlLApp. 1 Dist. April 13, 2001). That Pole may have failed to abide by a state procedural rule does not necessarily preclude this court from hearing his claim. ■ See Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“a federal claimant’s procedural default precludes federal habeas review, like direct review, only if the last state court rendering a judgment in the case rests its judgment on the procedural default.”). “[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.” Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). See also Harris, 489 U.S. at 261-62, 109 S.Ct. 1038. The Supreme Court also set a “plain statement” rule to govern the analysis of whether the state court rested its judgment on a procedural default: “[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state procedural bar.” Harris, 489 U.S. at 263, 109 S.Ct. 1038 (quoting Caldwell, 472 U.S. at 327, 105 S.Ct. 2633). See also Smith v. Battaglia, 415 F.3d 649, 653 (7th Cir.2005) (same); Sanders v. Cotton, 398 F.3d 572, 580 (7th Cir.2005) (where the state appellate court’s discussion of waiver is intertwined with its merits analysis, the state court’s decision does not rest on an independent and adequate state law ground). The state can point to no such statement here, and indeed the last state court to consider the gunshot residue issue expressly declined to rest on a procedural bar and instead decided the" }, { "docid": "23610959", "title": "", "text": "Rule 32 trial court’s order, The appellant’s argument, that the trial court erred in denying his Rule 32, A.R.Cr.P. petition as successive because it was a vehicle for an out-of-time appeal of his original petition, is without merit. Summary disposition of the petition was proper on another procedural ground, as the appellant failed to state a claim. Rule 32.7(d), A.R.Cr.P. The appellant did not show that his attorney was ineffective according to the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Whether Bailey’s claims that were raised in the 1993 Rule 32 Petitions are now proeedurally barred, turns on interpretation of the above language. In Harris v. Reed, 489 U.S. at 260, 109 S.Ct. 1038 (1989), the United States Supreme Court was confronted with the situation of a section 2254 habeas corpus petitioner whose ineffective-assistance claims in a state post-conviction relief proceeding had been rejected by the state appellate court in an unpublished opinion. That opinion stated that the petitioner had waived those claims through not presenting them on direct appeal (i.e., a state-law procedural default), but proceeded to analyze the claims on the merits and reject them. The question was whether the federal court in the section 2254 proceeding should refuse to review the claims because state procedural default rules barred them due to the ambiguity in the state appellate court’s decision about the ground it was relying upon. The Court held that “[a] procedural default does not bar consideration of a federal claim on ... habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a procedural bar.” Id. at 263, 109 S.Ct. 1038 (internal quotations omitted). In Harris, the state appellate court had “laid the foundation” for a holding based on waiver noting the petitioner’s failure to raise his claims on direct appeal, but never stating clearly and expressly its reliance on that ground. Id. at 266, 109 S.Ct. 1038. Consequently, federal habeas review was not precluded. Under Harris v. Reed, we must determine whether the Alabama Court" }, { "docid": "10511976", "title": "", "text": "Illinois Supreme Court denied Mr. Lilly’s pro se petition for leave to appeal. In 1987, Mr. Lilly sought post-conviction relief from the Illinois courts, raising (among others) the issues now before this court. The state appellate court held that Mr. Lilly had waived his ineffective assistance of counsel claims by failing to raise them in his pro se supplemental brief on direct appeal, and, alternatively, that no prejudice had been shown because the trial court’s rulings were correct. After the Illinois Supreme Court denied leave to appeal, Mr. Lilly sought a writ of habeas corpus from the United States District Court for the Central District of Illinois. The State’s initial response to the petition explicitly stated that “it would appear that no procedural bar precludes this court from addressing the merits”, and went to the merits of Mr. Lilly’s ineffective assistance of counsel claims. The district court found that the State had waived any procedural challenge and that Mr. Lilly had received ineffective assistance of counsel on his direct appeal, and so granted the writ and ordered the State to retry Mr. Lilly within 120 days. The State appeals. Our review is plenary. Freeman v. Lane, 962 F.2d 1252 (7th Cir.1992). “A federal district court reviewing a habeas petition must perform its own review and we must do the same.” United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1230, 117 L.Ed.2d 464 (1992). A. Procedural Default The State contends that the state appellate court’s finding of waiver precludes federal habeas review. We agree with the district court that the State waived this argument. Not only did the State initially fail to address the procedural default argument; its answer affirmatively admitted the absence of any procedural bar. See Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir.1990) (“Procedural rules apply to the government as well as to the defendants .... [I]f as a result a violent offender goes free, the Attorney General of Illinois must understand where the responsibility lies — with his own staff.”). We would reach the" }, { "docid": "17909775", "title": "", "text": "deliberately, he says, in order to set up a petition for post-conviction relief. The state’s highest court denied the petition for leave to appeal. Represented by the public defender’s office, Jenkins pursued a petition for collateral relief in the state’s court of first instance. That court dismissed the petition on the merits. In stead of taking an appeal, Jenkins sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254. Again he lost, this time on dual grounds: forfeiture by neglecting to present the claim to all levels of the state judiciary, and the merits. The district court concluded that Jenkins defaulted his claim of ineffective assistance by failing to present it to the Supreme Court of Illinois. See Simmons v. Gramley, 915 F.2d 1128 (7th Cir.1990); Nutall v. Greer, 764 F.2d 462 (7th Cir.1985). This would indeed be fatal, except that the state court considered a collateral attack on the merits. Illinois permits prisoners to present ineffective-assistance claims collaterally, despite failure to pursue them on direct review, when they depend on facts outside the original record. Perry v. Fairman, 702 F.2d 119 (7th Cir.1983) (collecting Illinois eases). Cf. Guinan v. United States, 6 F.3d 468 (7th Cir.1993). Procedural default in eases under § 2254 depends on state law. Although some language in Nutall and other cases from this circuit implies that failure to pursue a claim through all levels of the state judiciary is a federal bar to review, the Supreme Court’s more recent decisions show that state law alone is the basis of forfeiture in cases under § 2254. A default supplies an independent and adequate state ground for the judgment, so that questions of federal law no longer affect the outcome. Coleman v. Thompson, — U.S. —, —, 111 S.Ct. 2546, 2563-66, 115 L.Ed.2d 640 (1991); Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). This implies that when the final state court to consider a case acts on the merits of the federal question, without simultaneously asserting an independent state ground of decision, Harris, 489 U.S. at 264 n." }, { "docid": "14773529", "title": "", "text": "every conceivable issue on appeal,” Barnard, 104 Ill.2d at 230, 83 Ill.Dec. 585, 470 N.E.2d 1005, and that it was not incompetence for counsel to fail to raise issues which, in his judgment, were meritless, unless counsel’s evaluation of the merits was patently wrong. Id. Barnard had argued to the Supreme Court of Illinois that his trial counsel was ineffective because he failed to object to hearsay testimony and failed to submit a jury instruction on murder which contained the element of justification, Barnard’s only defense. Barnard also argued that his appellate counsel was ineffective because he did not raise on appeal trial counsel’s failures to object to hearsay testimony, to move for a mistrial, and to make offers of proof on appeal. The Supreme Court of Illinois held that appellate counsel’s failure to raise these issues on appeal was not patently wrong; the issues thus were waived. Id., at 231, 83 Ill.Dec. 585, 470 N.E.2d 1005; see also Hammond, 97 Ill.2d at 209, 73 Ill.Dec. 350, 454 N.E.2d 210; Duggan, 95 Ill.2d at 526, 70 Ill.Dec. 195, 449 N.E.2d 69. B. Cause-and-Prejudice Standard Failure to comply with the state’s procedural rules, in this case, failing to raise trial counsel’s ineffectiveness on appeal, is a procedural default which precludes federal habeas corpus review unless the petitioner can demonstrate (1) good cause for the noncompliance and (2) prejudice resulting from the failure to comply. Reed v. Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2908, 82 L.Ed.2d 1 (1984); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Cartee v. Nix, 803 F.2d 296, 300 (7th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1584, 94 L.Ed.2d 774 (1987); Nutall v. Greer, 764 F.2d 462, 464 (7th Cir.1985); United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (in banc). The Seventh Circuit has held that “cause should be given ‘a flexible" }, { "docid": "12240117", "title": "", "text": "enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Id. (quoting Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) (omitting internal citations)); see also United States ex rel. Nance v. Fairman, 707 F.2d 936, 940-41 (7th Cir. 1983) (state law claim that exclusion of prior inconsistent statement violated Illinois evidence law insufficient to fairly present confrontation clause argument based on same facts); Wilks, 627 F.2d at 38 (“A difference in legal theory between that urged in state courts and in a petition for habeas corpus precludes exhaustion.”). The legal basis upon which a petitioner seeks relief must be fairly presented to the court: “[fjederal judges will not presume that state judges are clairvoyant.” See Verdin, 972 F.2d at 1479 (quoting Petrucelli v. Coombe, 735 F.2d 684, 689 (2d Cir.1984)). Nor will federal judges assume that state appellate judges read trial and sentencing transcripts in search of errors to review sua sponte. We therefore conclude that the district court erred in finding that Momient-El fairly presented his claim of ineffective assistance of counsel on direct appeal. III. Momient-El’s failure to raise his ineffective assistance claim on direct appeal is not fatal to his habeas petition if that claim was fairly presented to the Illinois courts in the state postconviction proceedings. To find that this claim was not procedurally defaulted, we would need to conclude that the specific claim raised by petitioner in his federal habeas petition-ineffective assistance with regard to the sentencing election—was both presented in the post-conviction proceedings and that the Illinois courts addressed the claim on the merits, rather than dismissing the petition on the independent and adequate state law ground of waiver. The state maintains that Momient-El’s claim was never fairly presented in the post-conviction proceedings and, even assuming that it was, that the petition was dismissed on state procedural grounds. The district court did not specifically address the issue of whether Momient-El fairly presented the specific claims raised in the instant proceeding in his" }, { "docid": "4051995", "title": "", "text": "to review the merits of a claim. In Farmer v. Prast, 721 F.2d 602 (7th Cir. 1983), we addressed the effect of a state court decision which relied both on a procedural default and on the weakness of the appellant’s claim on the merits. There we determined that when a state court relies both on waiver and a rejection of the claim on the merits — a federal court will respect the alternate res judicata ground of the order and will be precluded from reaching the merits of the claim. See also Phillips v. Lane, 787 F.2d 208, 211 (7th Cir.1986). The state appellate court order at issue here is distinguishable from the orders in both Williams and Farmer. In Williams, the court completely ignored waiver, while in Farmer, the court expressly relied, in part, on waiver. The state court here did neither. In examining Harris’ post-conviction petition, the state court noted that failure to present an issue on direct appeal precludes post-conviction review unless the nature of the issue is such that it could not have been raised on direct appeal. The district court then examined the trial court record and found that all grounds, save that relating to the alibi witnesses, could have been presented on direct appeal. Without expressly finding that all other grounds were waived, the court then proceeded to a short discussion of general standards for judging a claim of ineffective counsel. Next, the court analyzed both trial counsel’s failure to call alibi witnesses, as well as other grounds that could have been raised on direct appeal and concluded that Harris had received the effective assistance of his trial counsel. The district court found the state court order analogous to that in People v. Ross, 63 Ill.App.3d 884, 20 Ill.Dec. 688, 380 N.E.2d 897 (1st Dist.1978), in which the Illinois Appellate Court noted a waiver problem but decided to examine the case on its merits. In Boss, however, the court explicitly stated its determination to ignore the procedural default. Here, we have no such clear expression of intent. There is neither an explicit finding of" }, { "docid": "17323391", "title": "", "text": "ineffectiveness, and 4) the assistance of his trial counsel was ineffective for failing to correct or preserve the alleged errors surrounding the jury instructions. Before we may reach the merits of Lostut-ter’s ineffective assistance of counsel or jury instruction claims, we must determine whether he has exhausted his state remedies and avoided any procedural defaults. Jones v. Washington, 15 F.3d 671, 674 (7th Cir.), cert. denied, — U.S. -, 115 S.Ct. 28, 129 L.Ed.2d 926 (1994); Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir.1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989). If we resolve either determination in the negative, Lostutter’s petition is barred, and we will not reach its merits. As exhaustion of state remedies is not at issue in this case, we focus on procedural default. A petitioner procedurally defaults on a claim by failing to present it to the highest court of the state. Jones, 15 F.3d at 675. Once a claim is procedurally defaulted, a federal court will not address that claim unless the petitioner can show both cause for the default and prejudice from the failure to obtain review on the merits. See id. (“Failure to appeal claims in state postconvietion proceedings will result in procedural default of those claims unless [petitioner] can show cause and prejudice.”); Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985) (“[W]e hold that a convicted state prisoner who fails to seek leave to present to the highest state court the constitutional objections that form the basis of his federal habeas petition waives those objections unless he can show cause for his default and prejudice from the alleged constitutional infirmities.”). Lostutter argues that, because he can show cause for and prejudice from his failure to seek a petition for leave to appeal the denial of his state postconviction claims to the Illinois Supreme Court, we should not apply the procedural default rule to that failure. Lostutter alleges that external factors impeded his ability to seek leave to appeal: 1) He was being transferred to another penal facility; 2) he has no legal research and writing" }, { "docid": "16315954", "title": "", "text": "court proceedings. We find and conclude that the petitioner’s petition for habeas corpus should be denied on the merits for the reasons stated in part III of this memorandum opinion. It is necessary, however, that we first discuss the Attorney General’s untenable argument that the petitioner suffered an “independent state procedural” default that precludes this Court from reaching the merits of petitioner’s claims. II. A. The Attorney General properly conceded that the petitioner exhausted both claims alleged in his federal habeas corpus petition. The records before the Court establish that petitioner’s refused “Alford” plea claim was exhausted on direct appeal and that his ineffective assistance of trial counsel claim was exhausted by his appeal of the State trial court’s denial of Rule 27.26 relief. The Attorney General’s response nevertheless argued that both “of petitioner’s claims are subject to adequate and independent state procedural grounds precluding review.” Response at 4. That argument was based on the fact that petitioner, after the Missouri Court of Appeals had affirmed his conviction on direct appeal, failed to file a Missouri Rule 83.03 motion to transfer to the Supreme Court of Missouri; similarly, after the Missouri Court of Appeals had affirmed the denial of Rule 27.26 relief, petitioner failed to file an application to transfer that appeal to the Supreme Court of Missouri pursuant to Missouri Rule 84.08. Based on the unwarranted assumption that a petitioner’s failure to file a motion to transfer an unsuccessful appeal from a Missouri Court of Appeals to the Supreme Court of Missouri is, in fact, a “procedural default,” the Attorney General devotes several pages of his response to a discussion of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and a number of cases decided by the Seventh and Ninth Circuits. Indeed, it is argued that the “position” maintained by the Attorney General “has recently been adopted by the Eighth Circuit” (Response at 5) by its decision in Poor Thunder v. United States, 810 F.2d 817 (8th Cir.1987). In Fisher v. Trickey, 656 F.Supp. 797 (W.D.Mo.1987), the Attorney General argued that a State prisoner’s" }, { "docid": "211535", "title": "", "text": "is used in the context of Rule 9(a) of the Rules Governing § 2254 cases, not as it is used in the context of state procedural default. The magistrate concluded that the government had not been prejudiced in its ability to challenge the habeas corpus petition since the transcripts of the guilty pleas were available, and consequently, the district court reached the merits of Henderson’s claim that his 1962 and 1964 guilty pleas were not knowingly and voluntarily given. The district court rejected Henderson’s claim on the merits, and Henderson appeals. II. Before we can address the constitutional question of whether Henderson’s guilty pleas were knowing, intelligent and voluntary, the state courts must have had a full and fair opportunity to review the claim. See Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir.1990). A federal claim that was not raised in the state courts is proeedurally barred and must be dismissed. United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir.1990). “ ‘Waiver in state court of a specific issue prevents federal habeas corpus relief based on that same issue absent a showing of cause and prejudice.’ ” Burgin v. Broglin, 900 F.2d 990, 996 (7th Cir.1990) (quoting Sotelo v. Indiana State Prison, 850 F.2d 1244, 1252 (7th Cir.1988)). Henderson did not challenge the 1962 or 1964 convictions in state court until 1983 when he filed a petition for post-conviction relief. The government argues that the state courts’ finding of waiver under the doctrine of laches precludes habeas corpus review. That is, the government asserts that “the petitioner’s failure to comply with a state court laches rule effectively deprived the state courts of an opportunity to review his case, and that this forfeiture of state court review constitutes a procedural default barring federal habeas review.” The state courts rejected Henderson’s post-conviction petition solely on the grounds of state procedural default. Consequently, we cannot reach the merits of Henderson’s claim unless Henderson can show cause for and prejudice resulting from his failure to challenge the guilty pleas sooner. See Nutall v. Greer, 764 F.2d 462, 464 (7th" }, { "docid": "4051992", "title": "", "text": "prepared to testify for the defense. In the end, howevér, the defense presented no witnesses, resting on the belief that the state had not proven its case against Harris beyond a reasonable doubt. Harris did not claim ineffective assistance of counsel in his direct appeal. In denying the petition for post-conviction relief, the state court noted that an issue is waived for purposes of post-conviction relief if it could have been raised on direct appeal. Typically, a claim of ineffective assistance of counsel cannot be raised on direct appeal because its resolution often requires evidence which is not contained in the record on appeal. Here, however, the state court found that all of the grounds presented to support the claim of ineffective assistance of counsel were sufficiently supported by the record to have been raised on direct appeal — with the exception of the ground alleging counsels’ failure to investigate and present alibi witnesses. After noting this, the court proceeded to reach and reject some of Harris’ claims on the merits — claims which he could have raised on direct appeal. The United States District Court held a three-day hearing to examine Harris' claim of ineffective assistance of counsel in his petition for habeas corpus relief and determined that Harris’ claim should be rejected on its merits. II. The state urges us to find that the district court erred in ruling that Harris had not waived his right to present his claim of ineffective assistance of trial counsel by failing to raise the issue on direct appeal. Failure to raise an issue that could have been raised on direct appeal waives the issue for the purposes of post-conviction review. People v. Edmonds, 79 Ill.App.3d 33, 34 Ill.Dec. 555, 398 N.E.2d 230 (1st Dist.1979). An issue which precludes a state appellate court from addressing the merits of a claim, also precludes a federal court, on a habeas corpus petition, from addressing the merits of the claim. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983)." }, { "docid": "23398037", "title": "", "text": "and prejudice from the alleged constitutional infirmities. Our holding today harmonizes with similar results in our recent habeas decisions. In United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc), we held that a state prisoner who fails to present a constitutional claim in his direct appeal forfeits federal habeas review of the claim, unless he shows cause and prejudice. In Williams v. Duckworth, 724 F.2d 1439 (7th Cir.), cert. denied, — U.S. ——, 105 S.Ct. 143, 83 L.Ed.2d 82 (1984), we held that a state prisoner who fails to raise in his post-conviction petition an issue that could not have been presented on direct appeal waives his right to present the issue in federal habeas proceedings, unless he shows cause and prejudice. Indeed, our holding complements Spurlark: a state prisoner waives habeas review of a claim not only by failing to present it to the lower appellate court on direct appeal but also by failing to seek leave to present it to the highest state court, having taken a direct appeal. In either case, the cause- and-prejudice exception is available to prevent a miscarriage of justice. B. Cause Nutall’s private counsel failed to file a petition for leave to appeal to the Illinois Supreme Court. The record does not disclose any reason for this failure, nor was the question considered at the motion hearing before the magistrate, of which there is no record. Nutall argues to us that he relied on counsel to protect his right to appeal and to seek collateral relief. This suggests ineffective assistance of counsel, one of the grounds on which he seeks habe-as relief. But even if there is merit in his contention that his trial counsel was ineffective, he had different counsel on appeal, and he makes no general charge that appellate counsel was ineffective. Assuming that ineffective assistance of appellate counsel would be adequate cause for Nu-tall’s default, we cannot find such ineffective assistance on the present record. There is no evidence that Nutall directed his appellate counsel to seek leave to appeal or that counsel gave him" } ]

[ { "docid": "23299823", "title": "", "text": "court erred in failing to include a definition of the term “knowingly” in the jury instructions on the substantive crime of conducting an illegal gambling business in violation of § 1955. This court found the defendants’ contention unpersuasive, holding that the “crime spelled out in 18 U.S.C. § 1955 is a general intent crime, where ‘a defendant need not be shown to have acted willfully in the sense of intentionally violating a known state legal duty.’ ” Id. (quoting United States v. Conley, 859 F.Supp. 909, 930 (W.D.Pa.1994)). Accordingly, the Sims court held that the district court did not err in failing to instruct the jury on meaning of “knowingly.” While an unpublished opinion has no precedential force, we are persuaded by the reasoning in Sims. We are thus satisfied that Abies was not entitled to the requested good-faith instruction on the § 1955 charge. Because the crime of conducting an illegal gambling business as defined under § 1955 is one of general intent, Abies cannot evade conviction under that section by establishing that he unwittingly or unknowingly conducted the bingo games at Castle Bingo in violation of the law of Kentucky. We note that our conclusion is consistent with that of our sister circuits that have addressed the issue. See United States v. O’Brien, 131 F.3d 1428, 1430 (10th Cir.1997) (holding that to be convicted under § 1955, a defendant need not know that the gambling business, among other things, violated state law); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding that intent to violate state law is not an essential element of a § 1955 violation). F. Sufficiency of the Evidence on the Conspiracy Conviction 18 U.S.C. § 371 provides in relevant part as follows: § 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire ... to commit any offense against the United States ... in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined ... or imprisoned ... or" } ]

[ { "docid": "426827", "title": "", "text": "issues of law, and, accordingly, we review these issues de novo. Cheek, 94 F.3d at 140. A. Dyal argues that the district court erred by failing to instruct the jury that the defendants must know that their conduct constituted illegal gambling under South Carolina law. According to Dyal, the district court’s construction of the statute improperly eliminated any mens rea requirement, and allowed the government to obtain a conviction simply by showing that the defendants conducted an enterprise that accepted entry fees for a derby, and that the amount of winnings was dependent on the number of entries. Dyal contends that if she concluded in “good faith” that her conduct was not gambling, then she could not be convicted under 18 U.S.C. § 1955, even though that statute may set forth only a general intent crime. We disagree with Dyal’s argument. Initially, we observe that the plain language of 18 U.S.C. § 1955 does not require that a defendant know that her conduct constitutes illegal gambling under state law. Accordingly, numerous courts have rejected the precise argument that Dyal makes here. See United States v. Abies, 167 F.3d 1021, 1031 (6th Cir.1999) (in conviction under § 1955 for operating a “bingo” game, upholding district court’s refusal to grant jury instruction that defendant could not be convicted if he had good-faith belief he was not acting in violation of state law); United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.1994) (in case also involving conviction under § 1955 for operating a bingo game, holding that because guilt under § 1955 is based on “conduct,” defendant did not need to know that his actions were illegal, but only that he performed the acts in question); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (rejecting argument that government must show accused had knowledge his conduct violated state law in order to obtain conviction under § 1955, and noting that “[i]t is sufficient that appellants in tended to do all of the acts prohibited by the statute and proceeded to do them”); United, States v. Thaggard, 477 F.2d 626, 632 (5th" }, { "docid": "426826", "title": "", "text": "18 U.S.C. § 1955 (collectively, the gambling convictions). The language of 18 U.S.C. § 1955 provides, in relevant part, that “[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.” The statute defines an “illegal gambling business” in relevant part as a “gambling business which is a violation of the law of a State or political subdivision in which it is conducted.” 18 U.S.C. § 1955(b)(l)(i). Dyal raises two arguments in seeking to overturn the gambling convictions. First, Dyal contends that the district court erred in failing to charge the jury that Dyal must have known that her conduct constituted gambling under South Carolina law. Second, Dyal argues that the district court erred in instructing the jury that the South Carolina gambling statute, S.C.Code § 16-19-130, is violated when a person pays an entry fee to enter a contest of skill and the winnings depend on the number of entries. Both these arguments address issues of law, and, accordingly, we review these issues de novo. Cheek, 94 F.3d at 140. A. Dyal argues that the district court erred by failing to instruct the jury that the defendants must know that their conduct constituted illegal gambling under South Carolina law. According to Dyal, the district court’s construction of the statute improperly eliminated any mens rea requirement, and allowed the government to obtain a conviction simply by showing that the defendants conducted an enterprise that accepted entry fees for a derby, and that the amount of winnings was dependent on the number of entries. Dyal contends that if she concluded in “good faith” that her conduct was not gambling, then she could not be convicted under 18 U.S.C. § 1955, even though that statute may set forth only a general intent crime. We disagree with Dyal’s argument. Initially, we observe that the plain language of 18 U.S.C. § 1955 does not require that a defendant know that her conduct constitutes illegal gambling under state law. Accordingly, numerous courts have rejected the" }, { "docid": "426834", "title": "", "text": "offering the prize must permanently relinquish the prize upon performance of a specified act[, but] [i]n a wager, each party has a chance of gain and takes a risk of loss”) (internal quotation marks removed). Accordingly, based on these distinctions, we conclude that the district court did not err its instructions to the jury concerning the elements of S.C.Code § 16-19-130. For these reasons, we affirm Dyal’s convictions for violating the illegal gambling statute, 18 U.S.C. § 1955. VII. In view of our holdings vacating the convictions for violating the animal fighting statute but affirming the illegal gambling statute convictions, we find it necessary to determine whether the conspiracy convictions may stand. We first consider the conspiracy convictions relating to Scott Lawson and Peeler, who were not indicted or convicted for engaging in illegal gambling under 18 U.S.C. § 1955. Scott Lawson and Peeler were charged with “Conspiracy to Violate the Animal Welfare Act.” As alleged in the Lawson indictment, the only object of the conspiracy in which they allegedly participated was to “sponsor and exhibit an animal in an animal fighting venture,” in violation of 7 U.S.C. § 2156(a)(1). Thus, the term “sponsor” was integral to the conspiracy conviction, and for the reasons discussed above, we are unable to conclude that “there is no reasonable possibility that the verdict was affected by” Juror 177’s misconduct in researching the definition of “sponsor” on Wikipedia. See Cheek, 94 F.3d at 142. Accordingly, we vacate Scott Lawson’s and Peeler’s conspiracy convictions, and award them a new trial with respect to that charge. The conspiracy charges and convictions for defendants Dyal, Sheri Hutto, Wayne Hutto, and Collins (the Dyal defendants) require us to engage in a different analysis. With respect to these defendants, the government framed its indictments as alleging a single conspiracy count for “Conspiracy to Violate the Animal Welfare Act and to Engage in an Illegal Gambling Business.” (Emphasis added.) The indictment thus alleges a multi-object conspiracy, and does so in the conjunctive. Ordinarily, when a conviction under a multi-object conspiracy indictment is supported on one ground but is legally inadequate" }, { "docid": "2547747", "title": "", "text": "(1967), because he believes that there are no nonfrivolous issues for appeal. Pursuant to Circuit Rule 51(b), Santos filed a response to counsel’s motion. Because counsel’s Anders brief is adequate on its face, we consider only those issues raised in the brief and Santos’s response. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per curiam). And our “duty is merely to determine whether counsel is correct in believing those grounds frivolous.” United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Counsel first considers whether Santos could argue that there was insufficient evidence to support Santos’s convictions for conspiracy, in violation of 18 U.S.C. § 371, and for aiding and abetting the bolita’s operation, in violation of 18 U.S.C. § 1955 and § 2. Santos “bears an extremely heavy burden” on this issue, as we will reverse a conviction only if “we determine that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Vega, 72 F.3d at 513. To establish a violation of § 1955, the government must prove that Santos “conducted” the bolita. United States v. Cyprian, 23 F.3d 1189, 1199 n. 14 (7th Cir.1994) (citing 18 U.S.C. § 1955). To “conduct” means “to perform any act, function or duty which is necessary to or helpful in the ordinary operation of the business, and ... a person may be found to conduct a gambling business even though he is a mere servant or employee having no part in the management or control of the business and no share in the profits.” Id. at 1199 n. 15 (quoting United States v. Greco, 619 F.2d 635, 638 (7th Cir.1980)). Jose Santos rented a bar called the “Poolroom,” and allowed the bolita’s operators (including his brother Efrain Santos) to use the Poolroom as a bolita collection site after another bar/collection site was searched by authorities. Therefore, the record demonstrates that Santos knew that he was facilitating the bolita’s continued operation by allowing his bar to function as a new collection site, and thus counsel properly concluded that this argument would be frivolous. Counsel" }, { "docid": "426779", "title": "", "text": "18 U.S.C. § 371, two counts of participating in, and/or aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2, and two counts of participating in, and/or aiding and abetting, an illegal gambling business, in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 2. A similar indictment was returned against James Morrow Collins, Jr. in December 2009, alleging the same five counts as alleged in the Dyal indictment, based on Collins’ alleged role in the Swansea derbies held in July 2008 and April 2009. With respect to the conspiracy charge, these indictments alleged that Dyal, Sheri Hutto, Wayne Hutto, and Collins each helped organize the derbies held in Swansea in July 2008 and April 2009. These indictments were based on Sheri Hutto’s alleged acts of announcing the scheduled fighters; Dyal’s alleged acts of collecting admission fees, checking identifications for membership in the South Carolina Game-fowl Breeders Association, and selling such memberships during the derbies; Wayne Hutto’s alleged acts of serving as a referee for the fights; and Collins’ alleged acts of handling money and ensuring that the rules were followed. With respect to violations of the animal fighting statute that did not involve a conspiracy, these indictments alleged generally that Dyal, Sheri Hutto, and Wayne Hutto sponsored and exhibited an animal, or aided and abetted individuals who sponsored an animal, in an animal fighting venture that occurred in July 2008 and April 2009, respectively. With respect to the illegal gambling statute charges, these indictments alleged that the nature of the derby, in which owners of fighting birds paid an entry fee to enter the birds in the derby and were eligible to win a “purse” if their birds won the most fights, constituted an illegal gambling operation in violation of South Carolina Code sections 16-19-10 and 16-19-130. The indictments stemmed from an undercover investigation conducted by the South Carolina Department of Natural Resources of a cockfighting organization based in Swansea. Undercover officers attended and made video-recordings of two cockfighting derbies, held in July 2008 and April 2009. During" }, { "docid": "6934706", "title": "", "text": "in the light most favorable to the prosecution, finds that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” it must affirm the conviction. United States v. Marren, 890 F.2d 924, 933 (7th Cir.1989). We may overturn a jury verdict only “when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985) (citations omitted). A. Count 15 Williams concedes that the evidence was sufficient to establish each element of the illegal gambling business charge under 18 U.S.C. § 1955, i.e., that he was one of the five persons who “conducted” the McBride bingo games within the meaning of § 1955. However, Williams contends that his conviction should be reversed pursuant to § 1955(e), because “the evidence did not show that he knew the McBride bingo games” were illegal, i.e., “operated as a profit-making gambling business rather than as tax exempt fundraisers for St. Mark’s and Nativity of Our Savior parishes.” This state of mind theory is not supported by the express language of the statute or any case law and is not an essential element of the offense which the government must prove for a conviction. In fact, because guilt under § 1955 is premised upon “conduct,” Williams did not need to know that his actions were illegal; he only needed to know that he performed the acts which turned out to be illegal. Nonetheless, on the basis that knowledge of illegality is an element of the offense, Williams challenges the sufficiency of the government’s evidence. Williams first argues that § 1955(e) excludes from § 1955’s prohibitions bingo activities of non-profit organizations which qualify for a § 501(c) tax exemption, in this case the Catholic Church, and that he was simply an employee providing security services for the bingo games. Second, Williams contends that he merely negotiated two contracts for Local 1014 with St. Mark’s Parish to operate bingo games in McBride Hall and to hire security guards for" }, { "docid": "426828", "title": "", "text": "precise argument that Dyal makes here. See United States v. Abies, 167 F.3d 1021, 1031 (6th Cir.1999) (in conviction under § 1955 for operating a “bingo” game, upholding district court’s refusal to grant jury instruction that defendant could not be convicted if he had good-faith belief he was not acting in violation of state law); United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.1994) (in case also involving conviction under § 1955 for operating a bingo game, holding that because guilt under § 1955 is based on “conduct,” defendant did not need to know that his actions were illegal, but only that he performed the acts in question); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (rejecting argument that government must show accused had knowledge his conduct violated state law in order to obtain conviction under § 1955, and noting that “[i]t is sufficient that appellants in tended to do all of the acts prohibited by the statute and proceeded to do them”); United, States v. Thaggard, 477 F.2d 626, 632 (5th Cir.1973) (same); see also United States v. Cross, 113 F.Supp.2d 1253, 1256 (S.D.Ind.2000) (holding that inclusion of term “knowingly” in indictment “over alleges the mens rea of the Section 1955 offense,” a general intent crime, and that the inclusion of the term was surplusage and “should and will be disregarded”). We conclude that the reasoning employed in these cases is persuasive, and we hold that Section 1955 is a general intent crime, which does not require the government to establish that the defendants knew that their conduct violated state law. We also agree with the Sixth Circuit’s decision in Abies that a good-faith instruction, such as the one that Dyal essentially requested in this case, is unavailable under these circumstances. Accordingly, we reject Dyal’s argument that the district court erred in failing to instruct the jury that the defendants must know their conduct constituted illegal gambling under South Carolina law. B. Alternatively, Dyal argues that the district court erred in instructing the jury on the elements of S.C.Code § 16 — 19— 130. That section" }, { "docid": "6934705", "title": "", "text": "as a substantive offense. This rule satisfies the Blockburger test by recognizing that “in order to prevail on a RICO charge, the government must prove a sort of antisocial conduct entirely different, in both type and magnitude, from the underlying offenses.... and at times [make] a painstaking review not of a single criminal act, but of a complex series of transactions often spanning many years and many states.” United States v. O’Connor, 953 F.2d 338, 342, 344 (7th Cir.), cert. denied, — U.S. -, 112 S.Ct. 1979, 118 L.Ed.2d 578 (1992). Thus, we will affirm the district court’s denial of Cyprian’s motion to dismiss Count 1. APPELLANT WILLIAMS’ CLAIMS Appellant Leroy Williams [“Williams”] contends that the evidence at trial was insuf- fícient to sustain his convictions on Count 15 for conducting an illegal gambling business and on Count 16 for conspiring to defraud the Internal Revenue Service. Williams bears a heavy burden in trying to reverse his conviction for insufficient evidence. The standard of review is well-established. If the reviewing court, considering all the evidence in the light most favorable to the prosecution, finds that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,” it must affirm the conviction. United States v. Marren, 890 F.2d 924, 933 (7th Cir.1989). We may overturn a jury verdict only “when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.” United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985) (citations omitted). A. Count 15 Williams concedes that the evidence was sufficient to establish each element of the illegal gambling business charge under 18 U.S.C. § 1955, i.e., that he was one of the five persons who “conducted” the McBride bingo games within the meaning of § 1955. However, Williams contends that his conviction should be reversed pursuant to § 1955(e), because “the evidence did not show that he knew the McBride bingo games” were illegal, i.e., “operated as a profit-making gambling business rather than as tax exempt fundraisers for St. Mark’s" }, { "docid": "403951", "title": "", "text": "days, or was violative of state law. See United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding that intent to violate state law is not necessary element' of crime under § 1955); Smaldone, 485 F.2d at 1348; cf. United States v. Gardner, 454 F.2d 534, 535 (9th Cir.1972) (noting that, absent legislative direction, knowledge of jurisdictional elements of offense not required for conviction). The statute requires only a general criminal intent, which is satisfied whenever the defendant knowingly does an act made unlawful by the statute. See United States v. Conley, 37 F.3d 970, 977 (3d Cir.1994); United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.1994); Hawes, 529 F.2d at 481. To say that the statute requires knowledge, however, does not answer the “question [of] what level of knowledge suffices.” See Staples v. United States, 511 U.S. 600, 621, 114 S.Ct. 1793, 1804, 128 L.Ed.2d 608 (1994) (Ginsburg, J., concurring). To establish the required mens rea, the government must demonstrate that a defendant knew that his or her act was one of participation in gambling. Any other rule would inappropriately criminalize apparently lawful conduct because § 1955 “proscribes any degree of participation in an illegal gambling business, except participation as a mere bettor.” Sanabria v. United States, 437 U.S. 54, 70 n. 26, 98 S.Ct. 2170, 2182 n. 26, 57 L.Ed.2d 43 (1978). Federal criminal statutes should not be construed to “impose criminal sanctions on a class of persons whose mental state ... makes their actions entirely innocent.” Staples, 511 U.S. at 614-15, 114 S.Ct. at 1801-02 (holding that to secure conviction for possession of unregistered “firearm” under 26 U.S.C. § 5861(d), government must prove defendant knew features that make possessed weapon a statutory “firearm” even though § 5861(d) does not explicitly state any mens rea requirement); see also United States v. X-Citement Video, 513 U.S. 64, 68-72, 115 S.Ct. 464, 466-68, 130 L.Ed.2d 372 (1994) (holding that because mere receipt of a package is “otherwise innocent conduct,” conviction for receipt of child pornography under 18 U.S.C. § 2252 requires showing that defendant knows materials received are" }, { "docid": "23299824", "title": "", "text": "unwittingly or unknowingly conducted the bingo games at Castle Bingo in violation of the law of Kentucky. We note that our conclusion is consistent with that of our sister circuits that have addressed the issue. See United States v. O’Brien, 131 F.3d 1428, 1430 (10th Cir.1997) (holding that to be convicted under § 1955, a defendant need not know that the gambling business, among other things, violated state law); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding that intent to violate state law is not an essential element of a § 1955 violation). F. Sufficiency of the Evidence on the Conspiracy Conviction 18 U.S.C. § 371 provides in relevant part as follows: § 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire ... to commit any offense against the United States ... in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined ... or imprisoned ... or both. This court has recognized that “the government need not prove a formal agreement to establish the existence of a conspiracy to violate federal law and that a tacit or mutual understanding among the parties will suffice.” United States v. Ellzey, 874 F.2d 324, 328 (6th Cir.1989). Moreover, “[a] conspiracy may be inferred from circumstantial evidence that can reasonably be interpreted as participation in the common plan.” United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir.1985). Count 1 of the Superceding Indictment charged Abies and the other defendants with conspiring to conduct an illegal gambling business and to commit money laundering. Abies argues on appeal that the evidence presented at trial was insufficient to support his conspiracy conviction. Specifically, he contends that the government failed to produce any evidence that he had a spoken or an unspoken mutual understanding with another person to commit a violation of federal law. The standard applicable to Ables’s claim of insufficient evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational" }, { "docid": "23328131", "title": "", "text": "the Internal Revenue Service. Hughes, with a three-level enhancement for her supervisory role in the business, was sentenced to twenty months incarceration followed by three years of supervised release. She has served her time and has been released from custody. Lanzotti and Hughes appeal their convictions and sentences. II. Lanzotti’s and Hughes’ Conviction A. Aiding and Abetting Instruction The defendants appeal their convictions on the grounds that aiding and abetting a state gambling law violation fails to satisfy the federal gambling statute’s (18 U.S.C. § 1955) requirement that the gambling business violate state law. We review the evidence and all reasonable inferences that can be drawn therefrom in the light most favorable to the Government, and we will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Jackson, 103 F.3d 561, 567 (7th Cir.1996). Only when the record contains no evidence, regardless of how it is weighed, from which a jury could find guilt beyond a reasonable doubt will a jury verdict be overturned. United States v. Furkin, 119 F.3d 1276, 1280 (7th Cir.1997). Section 1955 makes it a crime for whoever conducts, finances, manages, directs, or owns all or part of an illegal gambling business. 18 U.S.C. § 1955(a). In order to establish a violation under 18 U.S.C. § 1955, the government must prove the existence of an illegal gambling business. One requirement is for the government to establish that the business violated a law of the state in which it was conducted. 18 U.S.C. § 1955(b)(1)®. The indictment in this case charged the defendants with violating Illinois law 720 ILCS 5/28-1. Subsection (a)(1) of this provision provides that a person commits the offense of gambling when he “[pjlays a game of chance or skill for money or other thing of value.” 720 ILCS 5/28-l(a)(l). Subsection (a)(3) provides that a person commits the offense of gambling when he “[ojperates, keeps, owns, uses, purchases, exhibits, rents, sells, bargains for the sale or lease of, manufactures or distributes any gambling device.” 720 ILCS 5/28-l(a)(3). Lanzotti argued that" }, { "docid": "403950", "title": "", "text": "one of two Blue House employees, Jean Buxton or her daughter, Debra Krauser, both of whom had been hired by Dorothy. When a player finished with more credits than she began, she would make money; if less, the gambling business did. II To secure a conviction under 18 U.S.C. § 1955, the government must prove that a defendant conducted, financed, managed, supervised, directed, or owned all or part of an “illegal gambling business.” § 1955(a). That business must: (1) be in violation of state law; (2) “involve five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business”; and (3) remain in “substantially continuous operation” for more than thirty days or have a gross revenue of $2,000 in a single day. See § 1955(b)(l)(i)-(iii). Section 1955 is not a specific intent statute. United States v. Smaldone, 485 F.2d 1338, 1348 (10th Cir.1973). To be convicted under this provision, therefore, a defendant need not know that the gambling business involved five or more people, remained in operation for thirty days, or was violative of state law. See United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding that intent to violate state law is not necessary element' of crime under § 1955); Smaldone, 485 F.2d at 1348; cf. United States v. Gardner, 454 F.2d 534, 535 (9th Cir.1972) (noting that, absent legislative direction, knowledge of jurisdictional elements of offense not required for conviction). The statute requires only a general criminal intent, which is satisfied whenever the defendant knowingly does an act made unlawful by the statute. See United States v. Conley, 37 F.3d 970, 977 (3d Cir.1994); United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.1994); Hawes, 529 F.2d at 481. To say that the statute requires knowledge, however, does not answer the “question [of] what level of knowledge suffices.” See Staples v. United States, 511 U.S. 600, 621, 114 S.Ct. 1793, 1804, 128 L.Ed.2d 608 (1994) (Ginsburg, J., concurring). To establish the required mens rea, the government must demonstrate that a defendant knew that his or her act was one of" }, { "docid": "10332615", "title": "", "text": "(11th Cir.1995) (noting that “mere surplusage may be deleted from the indictment without error” and that “willfulness” is not an element of the offense of money laundering); United States v. Liparota, 735 F.2d 1044, 1047-48 (7th Cir.1984) (holding that inclusion of term “willfully” in indictment charging general intent crime did not require the government to prove specific intent), rev’d on other grounds, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). Count 2 of the indictment charges Defendants Rondell L. Cross, Jr., Robert G. Brown, II, John L. Crouse, Terry Rhoades, and Vicky L. Strickland with the offense of operating an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. To ■ prove a violation of Section 1955, the government must prove beyond a reasonable doubt that a defendant conducted, financed, managed, supervised, directed, or owned all or part of a gambling business that: (1) violated state law; (2) involved five or more persons in the operation of the business; and (3) was in substantial continuous operation for more than 30 days or had gross revenue of $2,000 or more in any single day. See 18 U.S.C. § 1955; United States v. Cyprian, 23 F.3d 1189, 1199 n. 14 (7th Cir.1994); United States v. Balistrieri, 779 F.2d 1191,1210 (7th Cir.1985). The offense of operating an illegal gambling business in violation of Section 1955 is a general intent crime. See, e.g., United States v. Ables, 167 F.3d 1021, 1031 (6th Cir.) (holding government not required to prove defendant knowingly violated state law in order to prove defendant conducted illegal gambling business in violation of § 1955), cert. denied, 527 U.S. 1027, 119 S.Ct. 2378, 144 L.Ed.2d 781 (1999); United States v. O’Brien, 131 F.3d 1428, 1429-30 (10th Cir.1997) (stating § 1955 “requires only a general criminal intent”). In Cyprian, the Seventh Circuit held that the defendant’s state of mind was not an essential element of the offense under Section 1955. Cyprian, 23 F.3d at 1199. The court explained, “because guilt under § 1955 is premised upon ‘conduct,’ [the defendant] did not need to know that his actions" }, { "docid": "10696145", "title": "", "text": "the number of pull-tab boxes reported was the first quarter of 1996, the last quarter Useni and Cozzo were actively involved in the operation of the Grand Palace before its sale to Bingo Partners. To calculate the unreported pull-tab profits from 1994 to 1996, Lexby multiplied $5745 times the number of sessions to get a figure representing total pull-tab revenue. Lexby used the $5745 amount because that represented 10 boxes of pull-tabs sold, which, based on the evidence, was the average number of boxes that were sold each session. Lexby then subtracted the pull-tab proceeds reported to the state from his calculation of the total pull-tab revenue to arrive at the total amount of unreported proceeds. From there, Lexby multiplied the unreported proceeds by .30, a profit multiplier that Lexby had calculated by dividing the reported pull-tab proceeds by the reported pull-tab profits, and obtained $959,426, a number representing the estimated unreported pull-tab profits; in other words, the amount that the operators of the Grand Palace kept and did not give to the IAWV posts from the sale of pull-tabs between 1994 and 1996. . To the extent that Useni and Cozzo also challenge their convictions for engaging in an illegal gambling operation under 18 U.S.C. § 1955 on the same grounds, such an argument is foreclosed by this court’s opinion in United States v. Cyprian, 23 F.3d 1189, 1199 (7th Cir.1994). In Cyprian, we stated that knowledge that an activity is illegal is not a necessary element of a § 1955 offense. Furthermore, even if knowledge were necessary, our analysis of their challenges to the sufficiency of the evidence to support their convictions under § 1955 would be essentially the same as the analysis we employ for their challenges to their convictions for conspiring to commit racketeering offenses; thus, there is no need to address those challenges separately. . Useni also challenges his two convictions under 26 U.S.C. § 7206(1) for wilfully understating the Grand Palace's corporate income on the July 12, 1995, return and the May 20, 1998, amended return for the Grand Palace. (Useni was charged with" }, { "docid": "426848", "title": "", "text": "the defendants’ motion for judgment of acquittal based on the sufficiency of the evidence pertaining to the animal fighting venture’s connection to interstate commerce; (2) whether the district court erred in denying the defendants' request to instruct the jury that the government had the burden to prove that the defendants' activities had a substantial effect on interstate commerce for a conviction to obtain; and (3) whether the district court erred in admitting certain evidence relating to Lawson’s sale of gaffs. . Lawson and Peeler were not charged with participating in any gambling activities relating to the animal fighting venture. . Dyal originally contended that the district court improperly struck from the indictment the words \"willfully” and \"knowingly,” but has abandoned that facet of her argument. . Although Dyal cites United States v. O’Brien, 131 F.3d 1428, 1430 (10th Cir.1997) for the proposition that the government must show that a defendant knew that her act was one of participation in gambling, the court specifically stated in O'Brien that \"Section 1955 is not a specific intent statute,” and that \"[t]o be convicted under this provision, ... a defendant need not know that the gambling business ... was violative of state law.” Id. Thus, Dyal’s reliance on O’Brien weakens her argument rather than strengthens it. . As discussed, a conviction under 18 U.S.C. § 1955 requires as an element of the offense that the defendant have violated a state or local gambling law. . A different rule is applicable when the conviction concerning one of the objects is set aside on factual, as opposed to legal, grounds. See Griffin v. United States, 502 U.S. 46, 56, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (holding that the Due Process Clause does not require a general guilty verdict on a multiprong conspiracy be set aside if the evidence is inadequate to support conviction as to one of the objects); Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (\"when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the" }, { "docid": "10332616", "title": "", "text": "days or had gross revenue of $2,000 or more in any single day. See 18 U.S.C. § 1955; United States v. Cyprian, 23 F.3d 1189, 1199 n. 14 (7th Cir.1994); United States v. Balistrieri, 779 F.2d 1191,1210 (7th Cir.1985). The offense of operating an illegal gambling business in violation of Section 1955 is a general intent crime. See, e.g., United States v. Ables, 167 F.3d 1021, 1031 (6th Cir.) (holding government not required to prove defendant knowingly violated state law in order to prove defendant conducted illegal gambling business in violation of § 1955), cert. denied, 527 U.S. 1027, 119 S.Ct. 2378, 144 L.Ed.2d 781 (1999); United States v. O’Brien, 131 F.3d 1428, 1429-30 (10th Cir.1997) (stating § 1955 “requires only a general criminal intent”). In Cyprian, the Seventh Circuit held that the defendant’s state of mind was not an essential element of the offense under Section 1955. Cyprian, 23 F.3d at 1199. The court explained, “because guilt under § 1955 is premised upon ‘conduct,’ [the defendant] did not need to know that his actions were illegal; he only needed to know that he performed the acts which turned out to be illegal.” Id. Thus, the government need not prove that a defendant knowingly violated a state law in order to prove the operation of an illegal gambling business in violation of 18 U.S.C. § 1955. See Ables, 167 F.3d at 1031; O’Brien, 131 F.3d at 1430 (holding defendant need not know that gambling business violated state law); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding intent to violate state law is not a necessary element of a § 1955 crime); United States v. Conley, 859 F.Supp. 909, 930 (W.D.Pa.1994) (“under Section 1955, a defendant need not be shown to have acted willfully in the sense of intentionally violating a known state legal duty”). Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), cited by Defendant Strickland, does not alter this conclusion. In that case the Supreme Court interpreted the federal statute governing food stamp fraud which provided in pertinent part: “whoever" }, { "docid": "10332617", "title": "", "text": "were illegal; he only needed to know that he performed the acts which turned out to be illegal.” Id. Thus, the government need not prove that a defendant knowingly violated a state law in order to prove the operation of an illegal gambling business in violation of 18 U.S.C. § 1955. See Ables, 167 F.3d at 1031; O’Brien, 131 F.3d at 1430 (holding defendant need not know that gambling business violated state law); United States v. Hawes, 529 F.2d 472, 481 (5th Cir.1976) (holding intent to violate state law is not a necessary element of a § 1955 crime); United States v. Conley, 859 F.Supp. 909, 930 (W.D.Pa.1994) (“under Section 1955, a defendant need not be shown to have acted willfully in the sense of intentionally violating a known state legal duty”). Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), cited by Defendant Strickland, does not alter this conclusion. In that case the Supreme Court interpreted the federal statute governing food stamp fraud which provided in pertinent part: “whoever knowingly uses, transfers, acquires, alters, or possesses coupons in any manner not authorized by [the statute] or the regulations” violates federal law. 7 U.S.C. § 2024(b)(1). The issue presented in the case was whether the government had to prove that the defendant knew that he was acting in a manner not authorized by statute or regulations. Liparota, 471 U.S. at 420-21, 105 S.Ct. 2084. The Court held that it did. Id. at 433, 105 S.Ct. 2084. The Court’s determination turned on its resolution of the ambiguity created by the placement of the adverb “knowingly”whether the adverb modified not only the verbs immediately following it but also the prepositional phrase at the end of the provision. Section 1955, however, does not contain such an ambiguity. In the absence of a similar ambiguity, the court declines to extend Liparota. Furthermore, an extension of Liparota to Section 1955 would be contrary to Cyprian and Balistrieri, which the court must follow. Therefore, the court concludes that evidence of a defendant’s intent is irrelevant as to the crime of operating" }, { "docid": "426829", "title": "", "text": "Cir.1973) (same); see also United States v. Cross, 113 F.Supp.2d 1253, 1256 (S.D.Ind.2000) (holding that inclusion of term “knowingly” in indictment “over alleges the mens rea of the Section 1955 offense,” a general intent crime, and that the inclusion of the term was surplusage and “should and will be disregarded”). We conclude that the reasoning employed in these cases is persuasive, and we hold that Section 1955 is a general intent crime, which does not require the government to establish that the defendants knew that their conduct violated state law. We also agree with the Sixth Circuit’s decision in Abies that a good-faith instruction, such as the one that Dyal essentially requested in this case, is unavailable under these circumstances. Accordingly, we reject Dyal’s argument that the district court erred in failing to instruct the jury that the defendants must know their conduct constituted illegal gambling under South Carolina law. B. Alternatively, Dyal argues that the district court erred in instructing the jury on the elements of S.C.Code § 16 — 19— 130. That section of the South Carolina Code provides that it is illegal for any person to: record[] or registerf] bets or wagers ... upon the result of any: (a) trial or contest of skill, speed or power of endurance of man or beast; ... or (c) lot, chance, casualty, unknown or contingent event whatsoever. [Or] aid[], assistf] or abet[] in any manner any of the aforesaid acts. S.C.Code § 16-19-130(3), (6). The district court instructed the jury, in relevant part, as follows: Section 16-19-130 of the South Carolina Code makes it illegal to record or register bets or wagers, with or without writing, upon the result of any trial or contest of skill, speed or power of endurance of man or beast, or aid, assist or abet in any manner in the aforesaid acts. For purposes of South Carolina law, a monetary amount awarded to the winner of a contest is not a bet or wager if it is a set amount funded by the sponsor of the event and not dependent on the number of entrants" }, { "docid": "22266754", "title": "", "text": "retes. It is the gambling business that must be found to violate Wisconsin law, not DiSalvo personally. As long as the twelve jurors all found that the gambling business that DiSalvo was charged with conducting violated Wisconsin law, they were unanimous on that material element of the crime, even if they differed among themselves as to which precise provision of Wisconsin law it violated. DiSalvo contends that in its instructions to the jury the court should have defined “gambling place” under Wisconsin law, given an instruction tendered by Balistrieri stating the theory of the defense, instructed on the unreliability of extrajudicial statements, and instructed that the intentional destruction of evidence could be considered affirmative evidence of weakness of the government’s case. We have given careful consideration to his arguments, and we have concluded that they are without merit. IV. Dennis Librizzi (No. 84-2012) Dennis Librizzi was charged with one count of conspiracy to conduct an illegal sports bookmaking operation in violation of 18 U.S.C. § 1955 (Count 1), with one substantive violation of § 1955 during the 1980 basketball season (Count 4), and with three counts of failure to file certain tax forms (Counts 6, 10, and 11). He was convicted on all counts. He was sentenced on June 4, 1984, to imprisonment for a year and a day on Count 1 and to three years probation on the remaining counts, on condition that he pay a fine of $15,000 during the probationary period. A. Constitutionality of 18 U.S.C. § 1955 Librizzi contends that § 1955 violates the implied equal protection provision of the Fifth Amendment because it selects for criminal prosecution citizens of the United States who happen to live in states where it is unlawful to operate a private gambling business. We think that this contention was definitively refuted in United States v. Hawes, 529 F.2d 472, 477-78 (5th Cir.1976). Accord United States v. Sacco, 491 F.2d 995, 1003 (9th Cir.1974) (en banc); United States v. Smaldone, 485 F.2d 1333, 1343 (10th Cir.1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974). Librizzi also makes" }, { "docid": "426825", "title": "", "text": "this case, as a matter of law, does not satisfy that obligation. We do not set aside a jury’s verdict lightly. However, the Sixth Amendment “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). We have held that “[n]o right touches more the heart of fairness in a trial.” Stockton, 852 F.2d at 743. In this case, we are unable to say that Juror 177’s use of Wikipedia did not violate the fundamental protections afforded by the Sixth Amendment. Accordingly, we vacate the appellants’ convictions under the animal fighting statute, and we award them a new trial with respect to those charges. VI. We next consider the challenges made by several of Scott Lawson’s co-defen dants, including Dyal, Sheri Hutto, Wayne Hutto, and Collins (collectively, Dyal), to their convictions for conspiracy to engage in an illegal gambling business, in violation of 18 U.S.C. § 371, and for operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (collectively, the gambling convictions). The language of 18 U.S.C. § 1955 provides, in relevant part, that “[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.” The statute defines an “illegal gambling business” in relevant part as a “gambling business which is a violation of the law of a State or political subdivision in which it is conducted.” 18 U.S.C. § 1955(b)(l)(i). Dyal raises two arguments in seeking to overturn the gambling convictions. First, Dyal contends that the district court erred in failing to charge the jury that Dyal must have known that her conduct constituted gambling under South Carolina law. Second, Dyal argues that the district court erred in instructing the jury that the South Carolina gambling statute, S.C.Code § 16-19-130, is violated when a person pays an entry fee to enter a contest of skill and the winnings depend on the number of entries. Both these arguments address" } ]

[ { "docid": "18630808", "title": "", "text": "Notes at 1229). Therefore, according to defendant, as Yankee cylinders are “steam heated cylinder^],” they are not classifiable under subheading 8439.99.10. Defendant’s position is unpersuasive. As noted previously, although the Explanatory Notes generally indicate the “proper interpretation of the Harmonized Tariff System, [they] are not legally binding on the United States.” Lynteq, 10 Fed. Cir. (T) at_, 976 F.2d at 699. Moreover, to the extent defendant’s interpretation of the Explanatory Notes conflicts with clear legislative intent, this Court declines to follow such an interpretation. Therefore, assuming the Explanatory Note cited by defendant would exclude Yankee dryer cylinders from the reach of heading 84.39 and subheading 8439.99.10 (by application to the HTSUS), this Court finds such an interpretation would defeat Congress’ express finding that the cylinders are parts of papermaking machines. See H.R. Rep. No. 1355 at 2; S. Rep. No. 1241 at 3, reprinted in 1978 U.S.C.C.A.N. at 3662. Accordingly, this Court concludes the Explanatory Note does not apply to the particular facts of this case. 2. Customs’ Uniform Practice: Customs’ long-standing practice of classifying Yankee dryer cylinders under item 668.06 prior to the enactment of item 912.06 and 668.05 also supports the Court’s conclusion that the article is properly classified under subheading 8439.99.10. As defendant properly notes, “decisions by the Customs Service * * * interpreting nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS.” H.R. Conf. Rep. No.576 at 549, reprinted in 1988 U.S.C.C.A.N. at 1582. The preceding passage, however, also indicates “on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS.” Id. at 549-50, reprinted in 1988 US.C.C.A.N. at 1582-83. As noted above, for at least thirteen years before Congress enacted item 912.06, Customs consistently classified Yankee dryer cylinders under item 668.06 as parts of papermaking machines. See T.D. 56,521, 100 Treas. Dec. 771 (1965); 1978 H.Q. Ruling; 1980 H.Q. Ruling. During this period, Customs expressly distinguished Yankee dryer cylinders from dryers and parts of" } ]

[ { "docid": "18630782", "title": "", "text": "plaintiff asserts the classification contravenes Congress’ intention that the transition to the HTSUS from the TSUS be “rate neutral” and the duty treatment contained in the TSUS carries over to the HTSUS. Pi’s Br. at 6-7 (citing Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 418, § 1211; H.R. Conf. Rep. No. 576,100th Cong., 2d Sess. at 548-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1581-83; Rhodia, Inc. v. United States, 64 CCPA 39, 43, C.A.D. 1181, 546 F.2d 898, 900-01 (1976)). Plaintiff claims Congress did not incorporate the precise terms of item 668.05, TSUS — which provided duty-free treatment for Yankee dryer cylinders — because only a small number of cylinders entered the United States each year. Id. at 7-8 (citing, Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature of the Harmonized System, Submitting Report, USITC Pub. 1400, Inv. No. 332-131, at 33 (June 1983)) (ITC Report). In addition, plaintiff asserts Congress’ intent to distinguish the subject merchandise from dryers and accord the merchandise duty-free treatment appears in conversion tables formulated by the International Trade Commission. Id. at 8. Plaintiff emphasizes the fact that these tables cross-reference item 668.05, TSUS, to subheading 8439.99.10, HTSUS, which provides duty-free treatment for parts of papermaking machinery. Id. Finally, according to plaintiff, as Congress sought to advantage domestic paper mills and relied on the lack of United States cylinder production in adopting item 668.05, the continued absence of domestic cylinder production precludes the conclusion that Congress intended to change the tariff treatment for the product in the HTSUS. Id. at 9. B. Defendant: Defendant argues it is entitled to summary judgment for five primary reasons. First, defendant maintains Customs’ classification of the merchandise under subheading 8419.32.50 is consistent with the language contained in the HTSUS and Congress’ intent in promulgating the subheading. Def s Br. at 11. Defendant claims Yankee dryer cylinders are within the ambit of heading 8419 and subheading 8419.32.50 because the cylinders dry paper by using heat and are parts of rotary dryers. Id. at 12-13,15 (citing Customs Co-operation Council, Explanatory Notes to the" }, { "docid": "5774180", "title": "", "text": "issue here. Statistical annotations, including statistical suffixes, are not part of the legal text of the HTSUS. HTSUS Stat. Notes 2(a), 2(b). They are not included among the appropriate references listed in GRI 1 and in the legislative history of the HTSUS. Therefore, they cannot be applied to forestall the examination of the whole of the HTSUS required of the Court. See Asta Designs, Inc. v. United States, 13 CIT 61, 66, 709 F. Supp. 1154, 1158 (1989) (decided under TSUS that the language of a statistical provision cannot be considered an eo nomine provision). Looking beyond the statistical suffix, as the Court must, the Court finds that the subheading manifestly does not include oleoresins of paprika formulated as coloring. The Court notes in passing that Pima Western also erroneously suggests that the statistical suffix for oleoresin of paprika at 3301.10.30.50 would be rendered surplusage if the substance were classified elsewhere. This is not true. In its own brief and at oral argument, Pima Western admitted that oleoresin of paprika is formulated with certain “color and heat” values as a coloring agent, and with different such values as a flavoring agent. Plaintiffs Memorandum In Support of Motion for Summary Judgment at 6. While the matter need not be decided here, it is evident that the statistical suffix could be applicable if an oleoresin formulated as a flavoring agent were classifiable at 3301.10.30 and statistical suffix .50. Thus, it is evident from the HTSUS and the Explanatory Notes that oleoresin of paprika formulated as a coloring agent is classifiable at 3203.00.05, and that this would not necessarily render the statistical suffix surplusage. F The Court Need not Refer to TSUS in Interpreting HTSUS Here Finally, Pima Western compares the former Tariff Schedules of the United States (“TSUS”) to the current HTSUS to support its argument that legislative intent supports its suggested classification. The Conference Report on the Omnibus Trade Act of 1988 touches upon this issue: In light of the significant number and nature of changes in nomenclature from the TSUS to the HTS, decisions by the Customs Service and the" }, { "docid": "2349465", "title": "", "text": "not to be deemed dispositive in interpreting the HTS[US]. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]. Id. In relation to television cameras, the nomenclature at issue has been changed; the relevant tariff provisions under the TSUS and HTSUS are not identical. In Sears, this court rejected the importer’s argument that the term “television cameras” should be limited to “only those cameras directly connected to or connectable to broadcast transmission apparatus for contemporaneous viewing at a distance.” 22 F.3d at 1086. We concluded that camcorders having the co-equal and independent functions of a camera and a tape recorder are combination devices. Id. at 1088. We accordingly held that camcorders were properly classified under item 685.45 of TSUS, which specifically covered: Radiotelegraphic and radiotelephonic transmission apparatus; radiobroadcast-ing and television transmission and reception apparatus, and television cameras; record players, phonographs, tape recorders, dictation recording and transcribing machines, record changers, and tone arms; all of the foregoing, and any combination thereof, whether or not incorporating clocks or other timing apparatus, and parts thereof. Id. at 1083 n. 1. In contrast, the HTSUS does not include a heading that provides for such a combination. Cf. HTSUS, heading 8525. Thus, while both the TSUS and HTSUS use the term “television cameras,” the heading under the HTSUS is significantly different from that under the TSUS, as it lacks the competing combination provision which controlled the Sears decision. Consequently, our prior holding in Sears is not dispositive of this case. Mitsubishi, 182 F.3d at 886. Having thus concluded that camcorders are prima facie classifiable under heading 8525 of the HTSUS, the only remaining issue is whether camcorders should nonetheless be classified under some alternative heading. JVC contends that its camcorders are described under headings 8543 and 8479, and therefore should be classified under either subheading 8543.80.90 or 8479.89.90. We disagree for the following reasons. First, as we noted earlier, the Explanatory Notes to heading 8525 explicitly state" }, { "docid": "12955738", "title": "", "text": "Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (”[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”) . This conclusion is also consistent with the definition and treatment of the term \"toy\" under the predecessor to the HTSUS, the Tariff Schedules of the United States (\"TSUS”). See, e.g., J.C. Penney Purchasing Corp. v. United States, 10 CIT 727, 728 (1986) (noting that schedule 7, part 5, subpart E, headnote 2 of the TSUS defined a \"toy” as \"any article chiefly used for the amusement of children or adults”); Ideal Toy Corp. v. United States, 78 Cust.Ct. 28, 33 (1977) (\"When amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement.”); see also Pima Western, Inc. v. United States, 20 CIT 110, 116-17, 915 F.Supp. 399, 404-05 (1996) (\"[0]n a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS [US].” (quoting H. Conf. R. No. 576, at 549-50)). . A finding that subject merchandise is properly classified under one principal use provision necessarily precludes its classification from another principal use provision. See Lenox Collections v. United States, 20 CIT 194, 196 (1996) (“Principal use is defined as the use which exceeds any other single use. Consequently, the fact that the merchandise may have numerous significant uses does not prevent the Court from classifying the merchandise according to the principal use of the class or kind to which the merchandise belongs.”) (quotations, citation and emphasis omitted). . In contrast to actual and principal use provisions, which classify goods by use, \"[a]n eo nomine classification provision is one which describes a commodity by a specific name.” Clarendon Marketing, Inc. v. United States, 144 F.3d 1464, 1467 (Fed.Cir.1998). .While" }, { "docid": "22855732", "title": "", "text": "classified as sports footwear with outer soles and uppers of rubber or plastics under HTS 6402.19.10, subject to a duty of 6 percent ad valorem. This phenomenon, known as tariff inversion, puts the U.S. production of components at risk. Therefore, the Committee approved a temporary suspension of the duty on boots without skates attached, provided the boots are actually used in the manufacture of roller skates. S.Rep.No. 101-252, at 31 (1990), reprinted in 1990 U.S.C.C.A.N. 928, 958. Thus, Congress noted the tariff inversion problem and rectified it by enacting a temporary suspension of the duty on boots without skates attached. However, in doing so, Congress considered suspending the duty retroactive to April 30, 1986, but chose not to. The items at issue entered before the effective date of the 1990 “temporary suspension” act. Under these circumstances where the meaning of the classification term is clear, we must enforce the classification system as written by Congress — however anomalous the tariff inversion may seem, even to Congress itself. V The imported items are footwear and must be classified as such under item 700.56, TSUS, and subheading 6402.19.10, HTSUS, not as parts of roller skates under item 734.90, TSUS, and subheading 9506.70.20, HTSUS. Accordingly, the judgment of the Court of International Trade is hereby reversed. REVERSED. . The headnotes in the TSUS \"set forth rules of interpretation, define terms, express classification priorities, limit or modify the scope of particular provisions, and achieve other purposes.” United States International Trade Commission, Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System 10 (1983). . Although not controlling, the Summaries are nonetheless instructive on the meaning of a tariff term. See United States v. Standard Surplus Sales, Inc., 69 C.C.P.A. 34, 667 F.2d 1011, 1015 n. 4 (1981). . While the Explanatory Notes do not constitute controlling legislative history, they are nonetheless intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings. Mita Copystar, 21 F.3d at 1082. . The action was described in the conference report as follows (emphasis added):" }, { "docid": "5774181", "title": "", "text": "and heat” values as a coloring agent, and with different such values as a flavoring agent. Plaintiffs Memorandum In Support of Motion for Summary Judgment at 6. While the matter need not be decided here, it is evident that the statistical suffix could be applicable if an oleoresin formulated as a flavoring agent were classifiable at 3301.10.30 and statistical suffix .50. Thus, it is evident from the HTSUS and the Explanatory Notes that oleoresin of paprika formulated as a coloring agent is classifiable at 3203.00.05, and that this would not necessarily render the statistical suffix surplusage. F The Court Need not Refer to TSUS in Interpreting HTSUS Here Finally, Pima Western compares the former Tariff Schedules of the United States (“TSUS”) to the current HTSUS to support its argument that legislative intent supports its suggested classification. The Conference Report on the Omnibus Trade Act of 1988 touches upon this issue: In light of the significant number and nature of changes in nomenclature from the TSUS to the HTS, decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. H. Conf. R. No. 576, at 549-50. This Court has, in the past, referred to TSUS to aid the interpretation of HTSUS. See, e.g., Beloit Corp. v. United States, 18 CIT 67, 75 et seq., 843 F. Supp. 1489, 1495 et seq. (1994). There, the reference was undertaken in the course of reviewing legislative history because the HTSUS was ambiguous. Id. There is no similar need to resort to the TSUS here because the provisions of the HTSUS at issue are unambiguous. Rather, the HTSUS on its own terms leads to a clear outcome. Moreover, Pima Western itself admits that the nomenclature changed from the TSUS to the HTSUS. The Court therefore finds that comparing the HTSUS with the TSUS" }, { "docid": "18685716", "title": "", "text": "Harmonized Commodity Description and Coding System, USITC Pub. 2051 (Jan. 1988) (ITC Report); ITC Report, Annex I (Conversion Tables)-, H.R.Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83 (Conference Report)-, and the Congressional goal of tariff neutrality. (See Pl.’s Br. at 19-24.) Citing Semperit Indus. Prods., Inc. v. United States, 18 CIT —, 855 F.Supp. 1292 (1994), Beloit Corp. v. United States, 18 CIT —, 843 F.Supp. 1489 (1994), and Hemscheidt Corp. v. United States, 18 CIT —, 858 F.Supp. 223 (1994), aff'd., 72 F.3d 868 (Fed.Cir.1995), plaintiff maintains that the neutrality goal of Congress in the TSUS/HTSUS conversion is achieved only by following Sports Graphics under Heading 4202 and classifying the merchandise under one of plaintiffs claimed classifications under Chapter 39. The Court disagrees. The TSUS/HTSUS conversion was effective as of January 1, 1989, while the CIT’s Sports Graphics decision, issued October 20, 1992, and the CAFC affirmance both occurred well after the conversion date. Accordingly, Sports Graphics was not a “prior decision” that the Court might infer was approved and ratified by Congress in the TSUS/HTSUS conversion and should not be considered instructive in interpreting the HTSUS. As stated in the Conference Report: [Decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dis-positive in interpreting the HTS. Nevertheless, on a case-by-ease basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. H.R.Rep. No. 576 at 549-50, reprinted in 1988 U.S.C.C.A.N. at 1582-83 (emphasis added). With respect to prior decisions, at the time of the conversion only Prepac would have had any relevance because it held that somewhat analogous merchandise was properly dutiable under the TSUS as luggage. Of course, as previously discussed above, item 772.15, TSUS, was not addressed in Prepac. Moreover, as suggested in the Conference Report, “prior decisions” may be considered instructive only to the extent that “the nomenclature previously interpreted in those decisions remains unchanged and" }, { "docid": "5774182", "title": "", "text": "courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. H. Conf. R. No. 576, at 549-50. This Court has, in the past, referred to TSUS to aid the interpretation of HTSUS. See, e.g., Beloit Corp. v. United States, 18 CIT 67, 75 et seq., 843 F. Supp. 1489, 1495 et seq. (1994). There, the reference was undertaken in the course of reviewing legislative history because the HTSUS was ambiguous. Id. There is no similar need to resort to the TSUS here because the provisions of the HTSUS at issue are unambiguous. Rather, the HTSUS on its own terms leads to a clear outcome. Moreover, Pima Western itself admits that the nomenclature changed from the TSUS to the HTSUS. The Court therefore finds that comparing the HTSUS with the TSUS is neither necessary nor enlightening. Conclusion For the foregoing reasons, the Court denies Plaintiff Pima Western’s motion for summary judgment, grants Defendant United States’ motion for summary judgment, and enters final judgment in favor of the United States. The Court notes that Congress amended HTSUS 3301.30 in 1995, placing “extracted oleoresins” under subheading 3301.90.10. Given the earlier dates of entry and liquidation, this later amendment is not relevant. Counsel for Pima Western suggested at oral argument that the Explanatory Notes do not apply to classifications at the eight-digit subheading level. He reasoned that since the CCC’s Harmonized System goes to only six digits, the CCC’s interpretive aids are similarly limited, and therefore inapplicable here. The Court disagrees. The eit-dghigit level of classification is subsidiary to, not an expansion of, the six- and four-digit levels. If the Explanatory Notes offer guidance that a product should be excluded from a four-digit heading or six-digit subheading, one can properly infer that the product is excluded from the eight-digit subheading. Of course, if the eight-digit subheading, a United States" }, { "docid": "12955739", "title": "", "text": "(1996) (\"[0]n a case-by-case basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS [US].” (quoting H. Conf. R. No. 576, at 549-50)). . A finding that subject merchandise is properly classified under one principal use provision necessarily precludes its classification from another principal use provision. See Lenox Collections v. United States, 20 CIT 194, 196 (1996) (“Principal use is defined as the use which exceeds any other single use. Consequently, the fact that the merchandise may have numerous significant uses does not prevent the Court from classifying the merchandise according to the principal use of the class or kind to which the merchandise belongs.”) (quotations, citation and emphasis omitted). . In contrast to actual and principal use provisions, which classify goods by use, \"[a]n eo nomine classification provision is one which describes a commodity by a specific name.” Clarendon Marketing, Inc. v. United States, 144 F.3d 1464, 1467 (Fed.Cir.1998). .While Ernie appears to be the most human-like of the characters, the court finds Ernie's cartoon-like figure, orange complexion, red button nose, and oval head a sufficient basis for finding him a \"non-human creature” for present purposes. See Harmonized Commodity Description and Coding System, Explanatory Notes (1st ed. 1986) (\"Explanatory Notes ”) at 1587 (noting that heading 9503 covers \"[t]oys representing animals or non-human creatures even if possessing predominantly hu man physical characteristics (e.g., angels, robots, devils, monsters)”) (emphasis added). The Explanatory Notes are the official interpretation of the scope of the Harmonized Commodity Description and Coding System (which served els the basis of the HTSUS) as viewed by the Customs Cooperation Council, the international organization that drafted the international nomenclature. Thus, while the Explanatory Notes “do not constitute controlling legislative history,\" they \"nonetheless are intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994) (citing Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed.Cir.1992)). . The statistical" }, { "docid": "3175605", "title": "", "text": "existing duty rates undisturbed as much as possible, the courts have consulted the classification history under the TSUS as a guide to resolving uncertainties that have arisen because of the nomenclature. See Lonza, Inc. v. United States, 46 F.3d 1098, 1107 (Fed.Cir.1995) (“Absent clear evidence of legislative intent to embrace an alternative statutory definition, and in light of its historical pedigree, the court cannot help but conclude that the TSUS definition of ‘drugs’ survives as the common and commercial meaning of the term under the HTS.”); Beloit Corp. v. United States, 843 F.Supp. 1489, 1502 (Ct. Int’l Trade 1994) (“The court concludes Customs’ uniform and long-standing practice, as codified in items 912.06 [TSUS] and 668.05 [TSUS], demonstrates Customs’ classification of Yankee dryer cylinders under subheading 8419.32.50 [HTSUS] is incorrect and the merchandise is properly classifiable under subheading 8439.99.10 [HTSUS].”) It is highly relevant that Congress and the executive stated their intention to maintain generally revenue-neutral tariff treatment in converting to the nomenclature of the HTSUS. The record shows no proposal to change the tariff treatment of succinic anhy-dride. Under the TSUS succinic anhydride produced from benzenoid sources was classified under Item 407.05 at 16.8% duty, while succinic anhydride produced from maleic an-hydride made from natural gas was classified under Item 426.04 at 4.2%. The government has provided no basis for concluding that a significant change in tariff was intended for succinic anhydride produced from maleic an-hydride produced from natural gas. In light of these several considerations, we are persuaded that appellant’s succinic anhy- dride was not correctly classified under subheading 2917.19.27, and is classified under 2917.19.50. The decision of the Court of International Trade is modified accordingly. II The government argues that Customs Service rulings must be given special deference by this court and by the Court of International Trade, citing the presumption of correctness in 28 U.S.C. § 2639(a)(1) (1970): § 2639. Burden of proof; evidence of value. (a)(1) ... [I]n any civil action commenced in the Court of International Trade under section 515, 516, or 516A of the Tariff Act of 1930, the decision of the Secretary of" }, { "docid": "3175604", "title": "", "text": "of domestic law. The conferees find that any changes in the rates of duty are consequential to the process of converting to the new nomenclature, and are necessary to reflect an overall balance of tariff concession commitments between the United States and its trading partners in the GATT. H.R.Rep. No. 100-576 at 548 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1581. See Marubeni America Corp. v. United States, 35 F.3d 530 (Fed.Cir.1994) (legislative history shows that any changes in tariff under the HTSUS are consequential to the process of converting to new nomenclature). Customs’ interpretation of the HTSUS classification in a way that would markedly increase the duty, although there was no prior indication that the rate was intended to undergo a major increase, is viewed with caution. Hemscheidt Corp. v. United States, 72 F.3d 868, 872 (Fed.Cir.1995) (“Nothing in the HTSUS indicates that Congress instructed Customs to cease its established and uniform classification practice regarding the subject articles.”) In light of the administrative mandate and legislative purpose that conversion to the harmonized system would leave existing duty rates undisturbed as much as possible, the courts have consulted the classification history under the TSUS as a guide to resolving uncertainties that have arisen because of the nomenclature. See Lonza, Inc. v. United States, 46 F.3d 1098, 1107 (Fed.Cir.1995) (“Absent clear evidence of legislative intent to embrace an alternative statutory definition, and in light of its historical pedigree, the court cannot help but conclude that the TSUS definition of ‘drugs’ survives as the common and commercial meaning of the term under the HTS.”); Beloit Corp. v. United States, 843 F.Supp. 1489, 1502 (Ct. Int’l Trade 1994) (“The court concludes Customs’ uniform and long-standing practice, as codified in items 912.06 [TSUS] and 668.05 [TSUS], demonstrates Customs’ classification of Yankee dryer cylinders under subheading 8419.32.50 [HTSUS] is incorrect and the merchandise is properly classifiable under subheading 8439.99.10 [HTSUS].”) It is highly relevant that Congress and the executive stated their intention to maintain generally revenue-neutral tariff treatment in converting to the nomenclature of the HTSUS. The record shows no proposal to change the tariff treatment" }, { "docid": "14047394", "title": "", "text": "argued that Plaintiff's reliance on General Note 7(f) is misplaced because that Note refers to \"headings” and not “heading” as at issue here. Id. As correctly pointed out by Plaintiff in its reply, Congress has stated that when interpreting a statute “unless the context indicates otherwise, words importing the singular include and apply to several persons, parties or things; words importing the plural include the singular.\" Plaintiff's Response at 10-11, quoting 1 U.S.C. § 1 (1988). .As discussed previously, the terms of the Headings direct classification of the imported salt in the Heading appropriate for the organic acid ester. The contradiction is that the terms of the Subheading Note direct classification under the provision that more specifically covers the imported salt or into a residual \"other” subheading, when possible, which is not provided for under the terms of the Headings. . Defendant compares the HTSUS and the Tariff Schedules of the United States (\"TSUS”), arguing the continuity between the two classification schedules with regard to the subject merchandise. Defendant’s Mem. at 12-14. Plaintiff responded to this argument in its Post-Hearing Mem. In Support Of Plaintiffs Motion For Summary Judgment. As the Court has found that the terms of the HTSUS direct classification of the imported salt, we do not need to examine the TSUS to assist in classifying the merchandise. . Plaintiff stated that any time the terms of the subheadings contradict the Chapter Notes, the terms of the subheadings control as directed by GRI 6. This response does not explain how “salts and esters” can have specific call-outs in the text of the subheadings under Heading 2917 if Heading 2917 does not encompass \"salts and esters”. . The Explanatory Notes are the official interpretation of the scope of the Harmonized Commodity Description and Coding System (which served as the basis of the HTSUS) as viewed by the Customs Cooperation Council, the international organization that drafted that international nomenclature. The Explanatory Notes “do not constitute controlling legislative history,\" nevertheless, they “are intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting subheadings.” Mita Copy star Amer." }, { "docid": "3175603", "title": "", "text": "to “harmonized” nomenclature. As President Reagan stated in initiating this conversion: In converting the tariff schedules the Commission should avoid, to the extent practicable and consonant with sound nomenclature principles, changes in rates of duty on individual products. Institution of Investigation for the Conversion of the Tariff Schedules of the United States into the Nomenclature Structure of the Harmonized System, 46 Fed.Reg. 47,897 (ITC 1981). The HTSUS implementation documents of record do not suggest the fourfold increase in tariff that necessarily follows from Customs’ interpretation of 2917.19.27. It is not disputed that under the TSUS suc-cinic anhydride not derived from benzenoid, quinoid, or modified benzenoid hydrocarbons was classified under Item 426.04, at the rate of 4.2% ad valorem. Upon enactment of the HTSUS, the Conference Report reiterated the purpose of the new nomenclature: The conferees believe that the HTS fairly reflects existing tariff and quota treatment and that the conversion is essentially revenue-neutral. Enactment of the tariff and quota treatment provided in this subtitle is intended to supersede and replace existing treatment as a matter of domestic law. The conferees find that any changes in the rates of duty are consequential to the process of converting to the new nomenclature, and are necessary to reflect an overall balance of tariff concession commitments between the United States and its trading partners in the GATT. H.R.Rep. No. 100-576 at 548 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1581. See Marubeni America Corp. v. United States, 35 F.3d 530 (Fed.Cir.1994) (legislative history shows that any changes in tariff under the HTSUS are consequential to the process of converting to new nomenclature). Customs’ interpretation of the HTSUS classification in a way that would markedly increase the duty, although there was no prior indication that the rate was intended to undergo a major increase, is viewed with caution. Hemscheidt Corp. v. United States, 72 F.3d 868, 872 (Fed.Cir.1995) (“Nothing in the HTSUS indicates that Congress instructed Customs to cease its established and uniform classification practice regarding the subject articles.”) In light of the administrative mandate and legislative purpose that conversion to the harmonized system would leave" }, { "docid": "2349464", "title": "", "text": "questions must await future adjudication. JVC next argues that this court’s previous determination of the common meaning of the term “television camera” in Sears is dispositive. We disagree. Our decision in Sears is not controlling because it was a decision that was based on an interpretation of tariff provisions under the TSUS, not the HTSUS. See Mitsubishi Int’l Corp. v. United States, 182 F.3d 884, 886 (Fed.Cir.1999) (stating that judgments interpreting provisions of the TSUS do not apply to classifications made under different language in the more recently enacted HTSUS). While prior TSUS cases may be instructive in interpreting identical language in the HTSUS, they are not disposi-tive. H.R. Conf. Rep. No. 100-576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83. As explained in the House Conference Report accompanying the Omnibus Trade and Competitiveness Act of 1988, which enacted the HTSUS: In light of the significant number and nature of changes in nomenclature from the TSUS to the HTS[US], decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are not to be deemed dispositive in interpreting the HTS[US]. Nevertheless, on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[US], particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS[US]. Id. In relation to television cameras, the nomenclature at issue has been changed; the relevant tariff provisions under the TSUS and HTSUS are not identical. In Sears, this court rejected the importer’s argument that the term “television cameras” should be limited to “only those cameras directly connected to or connectable to broadcast transmission apparatus for contemporaneous viewing at a distance.” 22 F.3d at 1086. We concluded that camcorders having the co-equal and independent functions of a camera and a tape recorder are combination devices. Id. at 1088. We accordingly held that camcorders were properly classified under item 685.45 of TSUS, which specifically covered: Radiotelegraphic and radiotelephonic transmission apparatus; radiobroadcast-ing and television transmission and reception apparatus, and television cameras; record players, phonographs, tape recorders, dictation recording and transcribing machines," }, { "docid": "2222867", "title": "", "text": "supports the court’s correlation of the TSUS and HTSUS provisions that encompass the subject goods. The “harmonization” of the tariff schedule was designed generally to adopt internationally accepted product nomenclature while leaving United States tariff provisions substantially intact, without change in the applicable duties. See H.R.Rep. No. 100-576, at 548 (1988) (Conf.Rep.), reprinted in 1988 U.S.C.C.A.N. 1547, 1581 (“The conferees believe that the HTS fairly reflects existing tariff and quota treatment and that the conversion is essentially revenue-neutral.”); see also Marubeni Am. Corp. v. United States, 35 F.3d 530, 532-33 (Fed.Cir.1994) (describing conversion to the Harmonized Tariff System). In guidelines provided with the President’s request to the International Trade Commission to draft the harmonized schedule, President Reagan stated: In converting the tariff schedules the Commission should avoid, to the extent practicable and consonant with sound nomenclature principles, changes in rates of duty on individual products. Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481, 1484 (Fed.Cir.1997) (quoting Institution of Investigation for the Conversion of the Tariff Schedules of the United States into the Nomenclature Structure of the Harmonized System, 46 Fed.Reg. 47,897, 47,897 (Sept. 30, 1981)). This court reasoned in Anhydrides that “[i]t is highly relevant that Congress and the executive stated their intention to maintain generally revenue-neutral tariff treatment in converting to the nomenclature of the HTSUS.” Id. This principle further supports the conclusion that HTSUS subheading 3921.90.11 continues to encompass textiles consisting wholly of man-made fibers, for the only change in the move from the TSUS to the HTSUS was from value to weight, with no change in definition of the fiber itself, and no change in the duty rates for the relevant subheadings. This history negates the interpretation that the change to the HTSUS removed wholly man-made fibers from the category that previously included such fibers, while providing no replacement category. Such interpretation would violate the principle of continuity of tariff embodied in the general charge to maintain revenue neutrality in the conversion from the TSUS to the HTSUS. The classification now proposed was explicitly precluded by the TSUS. Such a change, without any explanation by" }, { "docid": "2349463", "title": "", "text": "to the GRIs states that “[classification of goods in the tariff schedule shall be governed by the following principles.” GRI 1 then states that “classification shall be determined according to the terms of the headings and any relevant section or chapter notes.” GRI 2(b) provides that “[a]ny reference in a heading to a material or substance, shall be taken to include a reference to mixtures or combinations of that material or substance.” GRI 3 provides that “[w]hen, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings,” they must be classified under the heading that (1) is the most specific; (2) describes the component which gives the imported good its essential character; or (3) occurs last in numerical order. This statutorily-prescribed, comprehensive, and systematic method of classification set forth in the GRIs supplants the judicially-created “more than” doctrine and precludes its applicability to cases arising under the HTSUS. Whether other judicially-created doctrines are supplanted by the GRIs we do not attempt to decide. Any such questions must await future adjudication. JVC next argues that this court’s previous determination of the common meaning of the term “television camera” in Sears is dispositive. We disagree. Our decision in Sears is not controlling because it was a decision that was based on an interpretation of tariff provisions under the TSUS, not the HTSUS. See Mitsubishi Int’l Corp. v. United States, 182 F.3d 884, 886 (Fed.Cir.1999) (stating that judgments interpreting provisions of the TSUS do not apply to classifications made under different language in the more recently enacted HTSUS). While prior TSUS cases may be instructive in interpreting identical language in the HTSUS, they are not disposi-tive. H.R. Conf. Rep. No. 100-576, at 549-50 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1582-83. As explained in the House Conference Report accompanying the Omnibus Trade and Competitiveness Act of 1988, which enacted the HTSUS: In light of the significant number and nature of changes in nomenclature from the TSUS to the HTS[US], decisions by the Customs Service and the courts interpreting the nomenclature under the TSUS are" }, { "docid": "18685718", "title": "", "text": "no dissimilar interpretation is required by the text of the HTS.” As emphasized above, the HTSUS nomenclature greatly expands upon and diversifies the types of containers enumerated in the TSUS luggage provision and encompasses numerous goods not commonly thought of as “luggage,” e.g., holsters, musical instrument cases, shopping bags, map eases, tobacco pouches, and jewelry boxes. And, if for no other reason, a dissimilar interpretation under the HTSUS from that in Sports Graphics is required here due to the absence in the HTSUS of the pertinent language of item 772.15, TSUS, which was focused on in Sports Graphics as the proper classification of the coolers. In any event, with regard to plaintiffs reliance on the Conversion Tables, as pointed out in Beloit, 18 CIT at —, 843 F.Supp. at 1499, and Hemscheidt, 18 CIT at —, 858 F.Supp. at 227, the ITC Report cited by plaintiff, which cross-references items under the TSUS with subheadings under the HTSUS, although a relevant guide to the Comb’s inquiry, is not entitled to great weight; “the conversion cross-reference must in all eases be approached cautiously as a guide to the scope of HTSUS provisions,” and “are not intended, nor should they be viewed as a substitute for, the traditional tariff classification process.” Marubeni Am. Corp. v. United States, 19 CIT —, 905 F.Supp. 1101, 1110-1111 (1995) (citing ITC Report) (internal quotations and emphasis omitted); see also TSUSAJHTSUS Cross Reference Clarification, 53 Fed.Reg. 27,447 (Customs Serv.1988) (notice) (Clarification Notice). Among other strong caveats or cautionary remarks concerning improper reliance by the international trade community on the conversion cross-references for classification of merchandise under the HTSUS in lieu of the traditional tariff classification process, the Clarification Notice underscores that the TSUS/HTSUS cross-references were “designed to assist the user in translating a known classification in the TSUSA into a likely classification under the HTSUS.” See Clarification Notice, 53 Fed.Reg. at 27,447 (emphasis added). The item 772.15, TSUS, classification evolving from Sports Graphics, obviously was not a known classification on the effective date of the TSUS/HTSUS conversion. Consequently, plaintiffs efforts to establish item 772.15, TSUS, as a “known" }, { "docid": "18685717", "title": "", "text": "was approved and ratified by Congress in the TSUS/HTSUS conversion and should not be considered instructive in interpreting the HTSUS. As stated in the Conference Report: [Decisions by the Customs Service and the courts interpreting nomenclature under the TSUS are not to be deemed dis-positive in interpreting the HTS. Nevertheless, on a case-by-ease basis prior decisions should be considered instructive in interpreting the HTS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS. H.R.Rep. No. 576 at 549-50, reprinted in 1988 U.S.C.C.A.N. at 1582-83 (emphasis added). With respect to prior decisions, at the time of the conversion only Prepac would have had any relevance because it held that somewhat analogous merchandise was properly dutiable under the TSUS as luggage. Of course, as previously discussed above, item 772.15, TSUS, was not addressed in Prepac. Moreover, as suggested in the Conference Report, “prior decisions” may be considered instructive only to the extent that “the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTS.” As emphasized above, the HTSUS nomenclature greatly expands upon and diversifies the types of containers enumerated in the TSUS luggage provision and encompasses numerous goods not commonly thought of as “luggage,” e.g., holsters, musical instrument cases, shopping bags, map eases, tobacco pouches, and jewelry boxes. And, if for no other reason, a dissimilar interpretation under the HTSUS from that in Sports Graphics is required here due to the absence in the HTSUS of the pertinent language of item 772.15, TSUS, which was focused on in Sports Graphics as the proper classification of the coolers. In any event, with regard to plaintiffs reliance on the Conversion Tables, as pointed out in Beloit, 18 CIT at —, 843 F.Supp. at 1499, and Hemscheidt, 18 CIT at —, 858 F.Supp. at 227, the ITC Report cited by plaintiff, which cross-references items under the TSUS with subheadings under the HTSUS, although a relevant guide to the Comb’s inquiry, is not entitled to great weight; “the conversion cross-reference must" }, { "docid": "23022430", "title": "", "text": "The conversion report cross-references items under the TSUS with the HTSUS and vice versa. USITC Pub. 2030 (1983). This draft conversion was reviewed by government agencies, the private sector, and the trading partners. Later that year,' the conversion document was republished for private sector review. There are no HTSUS headings that expressly include vehicles for transport of goods and persons as did 692.10’ TSUS. The final cross-referencing report, however, paired 692.10 TSUS, “motor vehicles for the transport of goods and persons,” with 8703 HTSUS, “motor vehicles principally designed for the transport of persons;” and 692.02, “automotive trucks,” with 8704 HTSUS, “motor vehicles for the transport of goods.” See USITC Pub. 2051 (1988). Note, however, that the TSUS/HTSUS cross-references should not be viewed as a substitute for the traditional classification' process. TSUS/ HTSUS Cross Reference Clarification, 53 Fed.Reg. 27,447. Prior to January 1, 1989, the effective date of the HTSUS, the Pathfinder was classified under 692.10 TSUS (motor vehicles for the transport of goods and persons), 2.5% ad valorem. While not determinative, prior classification of Pathfinders is instructive. H.R.Con.Rep. No. 576, 100th Cong., 2nd Sess. 549-50 (1988), 1988 U.S.C.C.A.N. 1547. Legislative history also shows that any changes in the rates of duty from the TSUS to the HTSUS are consequential to the process of converting to the new nomenclature. Id. at 1581. C. Proceedings below. The Pathfinder was classified by the United States Customs Service (Customs) under 8704.31.00 (8704) of the HTSUS as a “motor vehicle for the transport of goods.” Pursuant to 9903.87.00 of the HTSUS, a 25% ad valorem duty was assessed. Nissan administratively protested this decision, pursuant to 19 U.S.C. § 1514, claiming that the Pathfinder should be classified as “motor cars and other motor vehicles principally designed for the transport of persons ... including station wagons” under 8703 HTSUS. This protest was denied. Nissan then brought an action in the CIT. The CIT conducted a three week trial de novo, pursuant to 28 U.S.C. § 2640, that included test driving the Pathfinder and comparison vehicles, videotape viewing, and extensive presentation of both testimonial and documentary evidence. The" }, { "docid": "22855733", "title": "", "text": "be classified as such under item 700.56, TSUS, and subheading 6402.19.10, HTSUS, not as parts of roller skates under item 734.90, TSUS, and subheading 9506.70.20, HTSUS. Accordingly, the judgment of the Court of International Trade is hereby reversed. REVERSED. . The headnotes in the TSUS \"set forth rules of interpretation, define terms, express classification priorities, limit or modify the scope of particular provisions, and achieve other purposes.” United States International Trade Commission, Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System 10 (1983). . Although not controlling, the Summaries are nonetheless instructive on the meaning of a tariff term. See United States v. Standard Surplus Sales, Inc., 69 C.C.P.A. 34, 667 F.2d 1011, 1015 n. 4 (1981). . While the Explanatory Notes do not constitute controlling legislative history, they are nonetheless intended to clarify the scope of HTSUS subheadings and to offer guidance in interpreting its subheadings. Mita Copystar, 21 F.3d at 1082. . The action was described in the conference report as follows (emphasis added): In-line roller skate boots (section 430 of House bill; section 1412 of Senate amendment; section 429 of conference agreement) Present Law Imports of boots actually used in the manufacture of in-line roller skates enter under HTS subheading 6402.19.10 with a column 1 general rate of duty of 6 percent ad valorem. House Bill Suspends the column 1 general rate of duly for item 6402.19.10 through December 31, 1992. Senate Amendment Identical provision, except for additional retroactive duty-free treatment to April 30, 1986. Conference Agreement The Senate recedes. 136 Cong.Rec. H5946 (daily ed. July 30, 1990) (joint explanatory statement of the committee of conference)." } ]

[ { "docid": "10899100", "title": "", "text": "on evidence of the spouses’ present conduct or history of financial management between the parties. See In re Barrow, 306 B.R. at 31; and In re Marciano, 372 B.R. at 216-17. While the 50/50 Rule is simple to apply and has at first blush the appearance of fairness in its treatment of the parties, it has its detractors. The major criticism rests on the fact that domestic relations laws serve a very different purpose than bankruptcy law and are in fact inconsistent with the policies informing bankruptcy law. In re Crowson, 431 B.R. at 489. As the Court in Croivson notes: [the] laws of marital dissolution require a just and equitable division of property between spouses based upon the means and needs of each. In bankruptcy, the court is concerned with whether the debtor has a property interest that is available for distribution to creditors, not whether a non-debtor spouse might have a greater need for the debtor’s property. Moreover, laws regarding the equitable distribution of marital property do not purport to establish property rights in separate property acquired during marriage, and the equitable division concept does not arise until the parties seek a divorce. Id. (footnotes omitted). The third approach is the “Income Rule” which calls for a division of the refund in proportion to each spouse’s income. See In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); and In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981). This approach has little support, and most courts commenting on the Income Rule immediately recognize the flaw in dividing the refund on a factor which may have very little to do with actual contributions to the total tax obligations between spouses. Hundley v. Marsh, 944 N.E.2d at 131, n. 6. The fourth approach is the “Separate Filings Rule” first articulated by the 10th Circuit BAP in In re Crowson, supra. The Tenth Circuit BAP was called on to determine the extent to which a joint tax refund constituted property of the debtor’s estate, where only one spouse had filed a petition for relief under Chapter 7 of the Bankruptcy Code. After considering and" } ]

[ { "docid": "4754172", "title": "", "text": "in the mansion house after the death of either.’ O.R.C. Section 3103.04. Applied to the case at bar, the instant refund checks represent overpayment of tax obligation incurred solely by [the working spouse’s] earnings, and thus constitute a refund of [his] wages. In consequence, any check proceeds are the property of [the working spouse] and are properly includable in [his] bankruptcy estate, unless validly conveyed by pre-Petition .transactions. The fact that the checks name both Debtors as payees, and thus are not transferable without [the working spouse’s] signature, O.R.C. Section 1303.15(B), (U.C.C. Section 3-116), does not alter the underlying property rights in any of the proceeds. The Court follows the result of the other bankruptcy courts considering the effect of Ohio law in its own determination that the non-income producing spouse has no property interest, and therefore no right to claim an exemption under Section 2329.-66 Revised Code, in an income tax refund made jointly payable to husband and wife debtors. Further, the Court recognizes that, in cases where husband and wife have both earned wages and made contributions through income tax withholdings which exceed their eventual joint tax liability, that each spouse has a potential property interest in the tax refund. In future cases, where both spouses have earned wages and made contributions exceeding their eventual tax liability, the Court will leave it to the Trustee to propose a formula for a fair allocation of the tax refund, which formula, absent proof to the contrary, should be presumed to be fair and equitable. See generally, Lieshout v. Verill, 17 B.R. 652, 655 (Bkrtcy. D. Md. 1982) (Prorating a tax refund between spouses’ estates based upon each spouses’s annual earnings is presumptively fair and equitable). See also, In re Kestner, 9 B.R. 334, 336 (Bkrtcy. E.D. Va. 1981) (Prorating according to the spouse’s contribution to the couple’s total income); In re Colbert, 5 B.R. 646, 648-49 (Bkrtcy. S.D. Ohio) (Each spouse has a property interest in the refund to the extent that their withholdings exceeded their portion of the joint tax liability). In the event of a dispute in the" }, { "docid": "19943952", "title": "", "text": "allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill.2005); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000); Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987). The common ground between all three approaches is that the determination of property rights in the assets of a debtor’s estate is a matter of state law. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-18, 59 L.Ed.2d 186 (1979). Debt- or argues that the Court should apply the minority approach set forth in In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000) and apply state domestic relations law to determine the allocation of the joint tax refund. Debtor asserts that under South Carolina domestic relations law, the non-filing spouse would receive at least 50% pursuant to the equitable distribution approach provided by S.C.Code. Ann. § 20-7-471. The Court is not convinced that South Carolina domestic relations law applies in this case to determine the interests of Debtor and his non-filing spouse in the tax refund. The statutes providing for equitable distribution of the assets are applicable only when the parties are" }, { "docid": "20232148", "title": "", "text": "(Bankr.D.Kan.1981). Consistent with what the Trustee proposes in this case, other courts allocate joint refunds in proportion to the income that each spouse generated in the relevant year. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). Finally, like what Debtor proposes, other courts have held that joint tax refunds should be allocated equally between husband and wife without regard to tax withholdings or income produced. In re Trickett, 391 B.R. 657 (Bankr.D.Mass.2008); In re Innis, 331 B.R. 784, 786 (Bankr.C.D.Ill.2005); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987). While the foregoing approaches are straight-forward in their application, all three approaches have suffered criticism. For instance, Debtor argues that the Trustee’s proposed distribution, which would allocate refunds in accordance with income produced, is misplaced because “income, in and of itself, has little or no bearing on the amount of the refund.” Similar to Debt- or’s foregoing argument, the court in In re Barrow, 306 B.R. 28, 30-31 (Bankr.W.D.N.Y.2004), rejected both the income and the withholding approaches reasoning: The reality of the Internal Revenue Code is that the total tax is not necessarily linked to income, while the overpayment is not necessarily linked exclusively to income or withholdings. For many taxpayers, a significant portion of the refund is attributable not to these factors, but to any of a number of credits, such as the child tax credit or credits for education or for child and dependent care expenses. In many ways, the tax consequences of a joint filing exhibit no proportionality to respective levels of withholding and income. Joint tax filers may claim an exemption for each spouse, thereby effectively allowing them to use that exemption to offset income of the spouse with higher earnings. Similarly, the losses or deductions of one spouse may favorably impact their joint taxable income. For many married couples, a joint filing permits use of a more favorable tax table. The results are most dramatically illustrated" }, { "docid": "10899108", "title": "", "text": "and to the income tax refunds in this case does not further the goals of bankruptcy, which is to provide for the distribution of the Debtor’s property to his or her creditors. In re Crowson, 431 B.R. at 489. Rather, it imposes a division of property between spouses at the potential expense of a debtor’s creditors. In fact, dividing the tax refund in half in this case is inconsistent with the goal of equitable distribution of marital property, because it is only one marital asset. In a divorce, the Court is charged with achieving equity of distribution of all of the property, not a piecemeal division of any one asset on a 50/50 basis. If it were appropriate to consider each piece of marital property as half-owned by the debtor’s spouse, then a trustee could rightfully seek turnover of half of all of the marital assets in the non-debtor spouse’s possession. Clearly, this is not the case, and demonstrates a major weakness in utilizing the 50/50 Rule: it is inconsistent with the DRL as it is actually applied, and is unsupported by any provision of the Bankruptcy Code. The Withholding Rule, the formula advocated by the Trustee, is equally deficient. As has been noted by other courts, the Withholding Rule is too limited as it focuses on only one aspect of a joint tax return, and fails to take into account the tax credits each spouse may be entitled to, which can have a significant effect on the overall tax liability or refund. See In re Barrow, 306 B.R. at 30-31 (“For many taxpayers, a significant portion of the refund is attributable ... to any of a number of credits, such as the child tax credit or credits for education or for education or for child and dependent care expenses.”); and In re Crowson, 431 B.R. 484, n. 20. Having considered and rejected the 50/50 Rule and the Withholding Rule, the Court turns to the Separate Filings Rule. The Court agrees with Judge Trust’s thoughtful and well reasoned opinion in In re Spina, 416 B.R. at 98, and with the" }, { "docid": "20232147", "title": "", "text": "his post-hearing brief that a trustee must prove by a preponderance of the evidence that the property sought in a turnover motion is indeed property of the bankruptcy estate and that the property is in the debtor’s possession. Id. DISCUSSION Proper allocation of the Palmers’ Montana income tax refund is quite simple because the allocation was already done according to Montana law and is reflected on the Palmers’ 2009 Montana Individual Income Tax Return. Specifically, Debtor is entitled to $3,055 of the Montana refund while the balance of $686 is payable to Debtor’s spouse. Until recently, courts that have sought to allocate federal tax refunds between debtors and their non-debtor spouses have taken one of three approaches. The first approach allocates refunds between spouses in proportion to them tax withholdings during the relevant year. See In re Lyall, 191 B.R. 78 (E.D.Va.1996); In re McFarland, 170 B.R. 613, 620 (Bankr.S.D.Ohio 1994); In re Honomichl, 82 B.R. 92, 94 (Bankr.S.D.Iowa 1987); In re Alden, 73 B.R. 215, 216 (Bankr.N.D.Fla.1986); In re Ballou, 12 B.R. 611, 612 (Bankr.D.Kan.1981). Consistent with what the Trustee proposes in this case, other courts allocate joint refunds in proportion to the income that each spouse generated in the relevant year. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). Finally, like what Debtor proposes, other courts have held that joint tax refunds should be allocated equally between husband and wife without regard to tax withholdings or income produced. In re Trickett, 391 B.R. 657 (Bankr.D.Mass.2008); In re Innis, 331 B.R. 784, 786 (Bankr.C.D.Ill.2005); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); Bass v. Hall, 79 B.R. 653, 656 (W.D.Va.1987). While the foregoing approaches are straight-forward in their application, all three approaches have suffered criticism. For instance, Debtor argues that the Trustee’s proposed distribution, which would allocate refunds in accordance with income produced, is misplaced because “income, in and of itself, has little or no bearing on the amount of the refund.” Similar to Debt- or’s" }, { "docid": "108096", "title": "", "text": "form 8379, Mrs. Barrow believes that from the total refund, the sum of $8,836 should be paid to herself, and that only $292 is available for offset of her husband’s pre-petition taxes. The debtor’s chapter 7 trustee vigorously objects to the motion of June Barrow for release of her claimed allocation from the 2000 tax refund. Relying upon the recent decision of my colleague in In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y.2003), the trustee asserts that the movant has gifted an interest in the refund to the debtor, so that the entire refund is now subject to offset by the Internal Revenue Service for payment of the debtor’s taxes. Such an offset will decrease the total of claims against the bankruptcy estate, and will thereby allow a greater distribution to other unsecured creditors. The trustee proposes, therefore, that the IRS satisfy its tax claim from the joint refund, and that any remaining refund be divided between the trustee and the debtor. For the reasons stated hereafter, this court rejects the positions both of the trustee and of June Barrow. A trustee may exercise control over an income tax refund, but only to the extent that it constitutes an asset of the estate under 11 U.S.C. § 541. Accordingly, a resolution of the present dispute requires a determination of the ownership of the joint tax refund. As to this issue, bankruptcy courts have adopted widely divergent positions. The majority view allocates a joint tax refund between spouses in proportion to their tax withholdings. See, e.g., In re. Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002). A second approach divides the refund in proportion to the income that each spouse generated. See, e.g., In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). Still other courts have ruled that each spouse owns the refund equally, so that the refund will be allocated evenly between them. See, e.g., In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000). In the Western District of New York, the most recent pronouncement on this issue was the decision of my colleague, the Honorable Michael J. Kaplan, in In re Hejmowski 296 B.R." }, { "docid": "18535150", "title": "", "text": "withholdings. For many taxpayers, a significant portion of the refund is attributable not to these factors, but to any number of credits, such as the child tax credits or credits for education or for child and dependent care expenses. In many ways, the tax consequences of a joint filing exhibit no proportionality to respective levels of withholding and income. Joint tax filers may claim an exemption for each spouse, thereby effectively allowing them to use the exemption to offset income of the spouse with higher earnings. Similarly, the losses or deductions of one spouse may favorably impact their joint taxable income. For many married couples, a joint filing permits use of a more favorable tax table. The results are most dramatically indicated when one spouse earns the entire family income. In that instance, because a spouse without income has joined in signing the tax return, the family may pay significantly less tax, as compared to the tax that would have accrued to a married person filing separately but with identical income and withholdings. It is simply inaccurate to say that the greater refund is attributable only to the income and withholdings of the employed spouse. Barrow, 306 B.R. at 30-31. The court in Innis goes on to explain the underpinnings of the “50/50 refund rule” as well as the practical reasons supporting its adoption. The imposition of joint and several liability for a tax deficiency that results from a jointly filed tax return is one of the factors underlying the presumption of equal ownership of a tax refund. Innis, 331 B.R. at 787. If a debtor’s spouse can suffer the burdens of filing a joint return, he or she should get the attendant benefits as well. Id. Some courts have looked to marital dissolution law as support for a joint ownership approach. Innis, 331 B.R. at 787; see also Hejmowski, 296 B.R. 645, 649-50 (Bankr.W.D.N.Y.2003); Aldrich, 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000). Other courts have criticized this approach in that marital dissolution law only applies upon dissolution of a marriage, and it is property law that should be looked to instead." }, { "docid": "3440397", "title": "", "text": "2008 tax refund in the amount of $4,797.00, is OVERRULED. . Tennessee Code Annotated § 26-2-103 provides that \"[p]ersonal property to the aggregate value of four thousand dollars ($4,000) debtor's equity interest shall be exempt from execution, seizure or attachment....” Tenn. Code Ann. § 26-2-103. Here, the Debtors claim a joint exemption of $7,527.00 in their personal property, allocating fifty percent (50%), or $3,763.50, to each Debtor. Of this amount, $2,398.50 represents 50% of the $4,797.00 tax refund claimed exempt by each Debtor. The allocation of the additional $236.50 of the tax refund to Mrs. Garbett would maximize her exemption in the refund at $2,635.00 thus capping her exemptions at the $4,000.00 statutory maximum. . A few decisions refer to a third approach, the Income Rule, in which the refund is divided in proportion to the income generated by each spouse. See, e.g., In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). This approach, however, appears to have been abandoned due to state law decisions holding that joint tax refunds may be held by debtors as entire-ties property. See Dillworth v. Hinton (In re Hinton), 378 B.R. 371 (Bankr.M.D.Fla.2007); In re Kossow, 325 B.R. 478 (Bankr.S.D.Fla. 2005). Additionally, while the majority of these cases were decided in the context of accounting for the allocation of a joint tax refund for a non-filing spouse, two cases do address the issue of a joint tax refund in a jointly filed bankruptcy case. See Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (8th Cir. BAP 2008) (adopting the Withholding Rule); In re Hejmowski, 296 B.R. 645 (Bankr.W.D.N.Y. 2003) (adopting the 50/50 Refund Rule). . Tennessee’s division of marital property statute provides, in part, as follows: (a)(1) In all actions for divorce or legal separation, the court having jurisdiction thereof may, upon request of either party, and prior to any determination as to whether it is appropriate to order the support and maintenance of one (1) party by the other, equitably divide, distribute or assign the marital properly between the parties without regard to marital fault in proportions as the court deems just. (b) For" }, { "docid": "1061697", "title": "", "text": "to which a debtor’s estate is entitled when a joint tax return has been filed with a nondebtor spouse. The majority of courts considering the issue have apportioned the tax refund according to the income tax withheld from each taxpayer. In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002); In re Smith, 310 B.R. 320 (Bankr.N.D.Ohio 2004); WDH Howell, supra; In re Lyall, 191 B.R. 78 (E.D.Va.1996). Regarding the refund of excess withholding tax as a repayment of earnings from employment, those courts allocate the refund according to each spouse’s contribution to the tax withholdings. Primary significance is placed upon the general rule that the filing of a joint return does not create an interest in one spouse in the other spouse’s income or otherwise alter property rights as between the taxpayers. In re Wetteroff, 453 F.2d 544 (8th Cir.1972). The TRUSTEE urges the Court to adopt this approach. Other courts have adopted a different position, holding that a tax refund should be allocated between spouses based upon the income earned by each spouse. In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981). These positions can cut both ways, sometimes giving the bankruptcy estate a larger share of the refund, sometimes not, depending upon whether the debtor spouse or the non-filing spouse had greater income or withholdings. Still other courts have adopted a third approach, advocated by the DEBTOR, that incorporates a marital partnership theory, holding that the refund is presumed to be split equally between the spouses, without regard to their individual earnings or with-holdings. In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000). The Barrow and Aldrich courts rejected the decisions allocating tax refunds on the basis of income earned or taxes withheld. The Barrow court, in particular, makes the following well-reasoned analysis as to why both approaches are ill-founded: I disagree with those courts that allocate refunds in proportion either to income or amount of withholdings. The reality of the Internal Revenue Code is that the total tax is not necessarily linked to income, while the" }, { "docid": "10899097", "title": "", "text": "(Bankr.D.N.J.2003); and Gordon v. U.S., 757 F.2d 1157, 1160 (11th Cir.1985) (“Where spouses claim a refund under a joint return, the refund is divided between the spouses, with each receiving a percentage of the refund equivalent to his or her proportion of the withheld tax payments.”). Each spouse has a separate legal interest in the refund based solely upon the percentage of withholdings attributable to each spouse’s income. If this approach were adopted in this case, 100% of the Federal and State income tax refunds would be deemed property of the Debtor’s estate. The Withholding Rule has been criticized by some courts because it only considers one component which creates the refund, namely, the monies withheld from each spouse’s salary. In cases such as this where both spouses earn income, both spouses may have accrued tax credits such as earned income credits, education credits and additional child tax credits, which are treated as payments pursuant to section 6401 of the Internal Revenue Code (“IRC”) and can affect the amount of an income tax refund. In re Crowson, 431 B.R. at 490 n. 20 (citing 26 U.S.C. § 6401(b)(1); 26 C.F.R. § 301.6401-1); Hundley v. Marsh, 459 Mass. 78, 85, 944 N.E.2d 127, 133 (Mass.2011). As recently noted by the Crowson court, the Withholding Rule is an appropriate method only where a joint tax return consists solely of returns from withholdings made by one spouse and does not involve any tax credits or other credits. In re Crowson, 431 B.R. at 490 n. 19. For these reasons, the 10th Circuit BAP has limited the application of In re Kleinfeldt, its prior decision adopting the Withholding Rule, to cases where a joint tax return consists solely of returns of one spouse’s wage withholdings. Id. A second approach is the “50/50 Rule.” While it is considered a minority approach, it has been adopted by Bankruptcy Courts in New York and has gained a following in other jurisdictions as well. Unlike the Withholding Rule, the 50/50 Rule does not start with the premise that each spouse has a separate legal interest in a tax" }, { "docid": "3440386", "title": "", "text": "exemption the items of the owned and possessed personal property, including money and funds on deposit with a bank or other financial institution, up to the aggregate value of four thousand dollars ($4,000) debtor’s equity interest. Tenn.Code Ann. § 26-2-103. The Debtors contend that, since the refund resulted from the filing of their joint tax return, they hold it as tenants by the entireties and, pursuant to In re Hensley, 393 B.R. 186 (Bankr.E.D.Tenn.2008), they may each claim an exemption in one-half of the proceeds. The Trustee, however, contends that since Mrs. Garbett earned the majority of the income represented on the joint tax return, any exemption in the refund must be likewise apportioned. When faced with the question of allocating tax refunds in bankruptcy cases, courts have generally adopted one of two approaches: the Withholding Rule or the 50/50 Refund Rule. The Withholding Rule provides for the division of a joint tax refund in proportion with each spouse’s tax withholdings. See, e.g., Carlson v. Moratzka (In re Carlson), 394 B.R. 491 (8th Cir. BAP 2008) (affirming the bankruptcy court’s adoption of the rule under Minnesota law); Kleinfeldt v. Russell (In re Kleinfeldt), 287 B.R. 291 (10th Cir. BAP 2002) (affirming the bankruptcy court but not applying state law). Conversely, the 50/50 Refund Rule provides that each debtor is entitled to claim fifty percent of the tax refund, subject to a rebuttable presumption. For some courts, this rule relies heavily upon a correlation with state domestic relations law, primarily the division of assets in a divorce. See, e.g., In re Trickett, 391 B.R. 657 (Bankr.D.Mass. 2008); In re Marciano, 372 B.R. 211 (Bankr.S.D.N.Y.2007); In re Innis, 331 B.R. 784 (Bankr.C.D.Ill.2005) (adopting the 50/50 Refund Rule without any sort of rebuttable presumption); In re Barrow, 306 B.R. 28 (Bankr.W.D.N.Y.2004); Loevy v. Aldrich (In re Aldrich), 250 B.R. 907 (Bankr.W.D.Tenn.2000). After analyzing the approaches, the court finds that the 50/50 Refund Rule, subject to rebuttal based on the circumstances of each individual case, is most compatible with Tennessee law. It is \"well-settled\" in Tennessee that spouses may own both realty and personal" }, { "docid": "12640914", "title": "", "text": "Court is whether or to what extent a non-income earning spouse who paid no withholding taxes is entitled to a portion of a joint income tax refund in a bankruptcy case. To answer this question, the Court must determine the relative property interests of the Debtors in the refund. In re Evans, No. 10-10077-WHD, 2010 WL 6612501, at *1 (Bankr.N.D.Ga.2010). A bankruptcy court must apply the applicable state law to determine whether a debtor held a property interest at the time the bankruptcy petition was filed. Butner v. United States, 440 U.S. 48, 54-55, 99 S.Ct. 914, 917-19, 59 L.Ed.2d 136 (1979). There does not appear to be any Georgia law that answers the question of how to allocate a joint income tax refund between married taxpayers other than when they are seeking a dissolution of their marriage. How a tax refund would be allocated in a state court divorce proceeding, however, is not the appropriate inquiry in a bankruptcy proceeding. In re Carlson, 394 B.R. 491, 494-95 (8th Cir. BAP 2008); Evans, 2010 WL 6612501, at *2. While the objective of the law in a marital dissolution may be the equitable distribution of assets between spouses, the objective of bankruptcy law is the equitable distribution of each of a debtor’s assets to each of that debtor’s creditors. In re Crowson, 431 B.R. 484, 489 (10th Cir. BAP 2010); Carlson, 394 B.R. at 495; Evans, 2010 WL 6612501, at *2. The appropriate inquiry, therefore, is whether Mrs. Hraga had a right to a portion of the refund at the time of the bankruptcy filing and whether that right, if any, became part of her bankruptcy estate, and not whether she might be entitled to seek an equitable distribution of the refund in some speculative, future divorce proceeding. Crowson, 431 B.R. at 489; Carlson, 394 B.R. at 495; Evans, 2010 WL 6612501, at *2. Because spouses in Georgia neither hold property as community property nor as tenants by the entirety, see O.C.G.A. § 19-3-9 (Lexis 2011), Georgia law is not like the applicable state law in most of the jurisdictions where" }, { "docid": "10899098", "title": "", "text": "re Crowson, 431 B.R. at 490 n. 20 (citing 26 U.S.C. § 6401(b)(1); 26 C.F.R. § 301.6401-1); Hundley v. Marsh, 459 Mass. 78, 85, 944 N.E.2d 127, 133 (Mass.2011). As recently noted by the Crowson court, the Withholding Rule is an appropriate method only where a joint tax return consists solely of returns from withholdings made by one spouse and does not involve any tax credits or other credits. In re Crowson, 431 B.R. at 490 n. 19. For these reasons, the 10th Circuit BAP has limited the application of In re Kleinfeldt, its prior decision adopting the Withholding Rule, to cases where a joint tax return consists solely of returns of one spouse’s wage withholdings. Id. A second approach is the “50/50 Rule.” While it is considered a minority approach, it has been adopted by Bankruptcy Courts in New York and has gained a following in other jurisdictions as well. Unlike the Withholding Rule, the 50/50 Rule does not start with the premise that each spouse has a separate legal interest in a tax refund. Instead, the refund is divided equally, based on an application of § 326 of the New York Domestic Relations Law (“DRL”) regarding division of marital property in a divorce proceeding. In re Hejmowski, 296 B.R. at 648-49; In re Marciano, 372 B.R. at 216; In re Barrow, 306 B.R. at 31; and In re Glenn, 430 B.R. at 62. The argument for adopting the 50/50 Rule in New York is that the DRL “offers an illustrative definition [of marital property] that provides a useful device for apportioning ownership.” In re Marciano, 372 B.R. at 215; see also In re Hejmowski, 296 B.R. at 649-50. The Bankruptcy Court in In re Marciano opined on the fairness of a 50/50 division, and proffered that the Second Circuit Court of Appeals relied on DRL § 326 to determine the scope of property of the estate in a Chapter 7 proceeding. 372 B.R. at 215 (citing Musso v. Ostashko, 468 F.3d at 99). Some courts treat the 50/50 division as a rebutta-ble presumption, which may be adjusted based" }, { "docid": "6809272", "title": "", "text": "an exemption question, as it is presented here where both spouses are debtors, the above analysis completely suffices. It would not completely suffice if the unemployed spouse is not a debtor, because state exemption law does not provide a cash exemption outside a bankruptcy case. However, the fact that the Domestic Relations Law treats each spouse’s earnings as “marital property” even in a dispute between the spouses, completes the § 541 analysis. The non-debtor spouse does have a property interest to the exclusion of the debtor spouse. And the general rule that governs all cases here for every other purpose applies— husband and wives own their jointly-owned assets (homes, bank accounts, investments, lottery winnings, etc.) in equal shares. These Debtors may claim an aggregate of $5,000 of the tax “refund” exempt. SO ORDERED. .There are many other cases. The minority approach had been set forth in Bass v. Hall, 79 B.R. 653 (W.D.Va.1987). That approach looks to state law standards and matrimonial law treatment of substantive property rights which consider the substantial contribution of a stay-at-home spouse when determining equitable distribution of property. Furthermore, the Internal Revenue Code imposes joint and several liability for any tax deficiency regardless of which spouse generated the taxable income. The courts reasoned that if a non-filing spouse would be liable for any deficiency it would be unjust to deny that person an ownership interest in the event of a refund. Lastly, the minority courts rationalized that joint tax refunds should be treated with the same presumption of equal ownership as other negotiable instruments. These courts divided the tax refund equally between the spouses after taking into account all the facts and circumstances of each case. A second approach allocates the joint tax return based on the income produced by the married taxpayers. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646 (Bankr.S.D.Ohio 1980). The courts reasoned that although signing a joint return would lead to joint and several liability it would not give rise to" }, { "docid": "6809273", "title": "", "text": "stay-at-home spouse when determining equitable distribution of property. Furthermore, the Internal Revenue Code imposes joint and several liability for any tax deficiency regardless of which spouse generated the taxable income. The courts reasoned that if a non-filing spouse would be liable for any deficiency it would be unjust to deny that person an ownership interest in the event of a refund. Lastly, the minority courts rationalized that joint tax refunds should be treated with the same presumption of equal ownership as other negotiable instruments. These courts divided the tax refund equally between the spouses after taking into account all the facts and circumstances of each case. A second approach allocates the joint tax return based on the income produced by the married taxpayers. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646 (Bankr.S.D.Ohio 1980). The courts reasoned that although signing a joint return would lead to joint and several liability it would not give rise to a change of ownership of the property and a non-income producing spouse would have no property interest in any refund. The bankruptcy code requires a debtor to have a property interest in the property being claimed as exempt. The courts reasoned that the debtor would be eligible for an exemption in the tax refund only in proportion to the income they produced. The majority approach determined that where there is a joint tax refund the income should be allocated between the spouses in proportion to their tax withholdings. See In re McFarland, 170 B.R. 613 (Bankr.S.D.Ohio 1994); In re Honomichl, 82 B.R. 92 (Bankr.S.D.Iowa 1987); In re Alden, 73 B.R. 215 (Bankr.N.D.Fla.1986); In re Ballou, 12 B.R. 611 (Bankr.D.Kan.1981). In reaching their conclusion these courts rely on several factors: (1) the filing of a joint tax return does not alter the property rights between the spouses; (2) where the payment of taxes came from only one spouse it cannot later be claimed as property of the non-debtor spouse in the event of a refund; (3)" }, { "docid": "19949456", "title": "", "text": "a “legal or equitable interest” in the remaining portion of the Refund such that it becomes “property of the estate” under 11 U.S.C. § 541 must be determined by applicable state law. Musso v. Ostashko, 468 F.3d 99, 105 (2d Cir.2006) (citing Butner v. United States, 440 U.S. 48, 54, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979)). To that end, an assessment must first be made as to which body of state law applies. Bankruptcy courts range broadly on the subject of how to make this determination. The majority view allocates a joint tax refund between spouses in proportion to their tax withholdings (the “50/50 Withholding Rule”), relying on state property law. See, e.g., In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002). A second approach divides the refund in proportion to the income that each spouse generated (the “Proportional Income Rule”), also basing the analysis on state property law. See, e.g., In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985). Still other courts have ruled that each spouse owns the refund equally, so that the refund should be allocated evenly between them (the “50/50 Refund Rule”), following the concept of marital property from state matrimonial law. See, e.g., In re Aldrich, 250 B.R. 907 (Bankr.W.D.Tenn.2000). The Bankruptcy Court for the Western District of New York has adopted the 50/50 Refund Rule and applied a rebut-table presumption of equal ownership to any joint tax refund. In re Barrow, 306 B.R. 28 at 31. The presumption of equal ownership in the 50/50 Refund Rule may be rebutted by a demonstration that the couple’s “present conduct or history of financial management” suggests separate financial affairs. Id. Bankruptcy courts following the 50/50 Refund Rule have applied state matrimonial law, in some cases borrowing the rationale followed by matrimonial courts in dividing property in a divorce proceeding. In re Aldrich, 250 B.R. at 911. Here, the applicable state law is New York’s Domestic Relations Law (“DRL”) § 236, which states in relevant part: c. The term “marital property” shall mean all property acquired by either or both spouses during the marriage and before the execution" }, { "docid": "19943951", "title": "", "text": "Murray, 31 B.R. 499, 501-02 (Bankr.E.D.Pa.1983). While the parties do not dispute that some portion of the tax refund belongs to the estate, Debtor objects to the Trustee’s allocation of the refund. Debtor argues that his wife has a one-half interest in the subject tax refund and therefore her portion is not property of the bankruptcy estate. The Trustee concedes that some portion of the tax refund belongs to Debt- or’s wife, but argues that the pre-petition portion should be allocated proportionally in accordance with the income produced by Debtor and his wife. Thus, the issue to be determined is the amount of the tax refund that constitutes property of Debt- or’s estate. This is an issue of first impression in this district. Bankruptcy courts in other districts have adopted three different approaches to determine the portion of a tax refund to which a debtor’s estate is entitled when a joint tax return has been filed with a non-debtor spouse. The majority approach holds that the tax refund from a joint tax return should be allocated proportionally between the husband and wife in accordance with their respective tax withholdings during the relevant year. See In re Kleinfeldt, 287 B.R. 291, 292 (10th Cir. BAP 2002); In re Edwards, 363 B.R. 55, 58-59 (Bankr.D.Conn.2007); In re Lock, 329 B.R. 856, 860 (Bankr.S.D.Ill.2005); In re Smith, 310 B.R. at 323; In re WDH Howell, LLC, 294 B.R. 613 (Bankr.D.N.J.2003); In re Lyall, 191 B.R. 78, 85 (E.D.Va.1996); In re Gleason, 193 B.R. 387, 389 (Bankr.D.N.H.1996). Similarly, other courts have allocated the joint tax refund proportionally in accordance with income produced, which is the approach proposed by the Trustee in this case. See In re Levine, 50 B.R. 587 (Bankr.S.D.Fla.1985); In re Verill, 17 B.R. 652, 655 (Bankr.D.Md.1982); In re Kestner, 9 B.R. 334, 336 (Bankr.E.D.Va.1981); In re Colbert, 5 B.R. 646, 648-49 (Bankr.S.D.Ohio 1980). The minority approach, advocated by the Debtor, holds that joint tax refund should be allocated equally between the husband and wife without regard to tax withholdings or income produced. See In re Innis, 331 B.R. 784, 787 (Bankr.C.D.Ill.2005);" }, { "docid": "18535151", "title": "", "text": "simply inaccurate to say that the greater refund is attributable only to the income and withholdings of the employed spouse. Barrow, 306 B.R. at 30-31. The court in Innis goes on to explain the underpinnings of the “50/50 refund rule” as well as the practical reasons supporting its adoption. The imposition of joint and several liability for a tax deficiency that results from a jointly filed tax return is one of the factors underlying the presumption of equal ownership of a tax refund. Innis, 331 B.R. at 787. If a debtor’s spouse can suffer the burdens of filing a joint return, he or she should get the attendant benefits as well. Id. Some courts have looked to marital dissolution law as support for a joint ownership approach. Innis, 331 B.R. at 787; see also Hejmowski, 296 B.R. 645, 649-50 (Bankr.W.D.N.Y.2003); Aldrich, 250 B.R. 907, 913 (Bankr.W.D.Tenn.2000). Other courts have criticized this approach in that marital dissolution law only applies upon dissolution of a marriage, and it is property law that should be looked to instead. In re Lock, 329 B.R. 856, 859 (Bankr.S.D.Ill.2005). Although there is no marital or property law directly on point, this Court finds that in Massachusetts, “the concept of marriage as a shared partnership is a broad principle that is now widely accepted and used by courts as part of their decisional framework.” Innis, 331 B.R. at 788 (recognizing overarching theme of martial partnership in Illinois law); Bee Baccanti v. Morton, 434 Mass. 787, 752 N.E.2d 718 (2001) (recognizing general principle that property acquired during marriage is part of the marital property subject to distribution); Mass. Gen. Laws ch. 208, § 34 (2003). Therefore, Massachusetts law is not at odds with the 50/50 split approach and the Court adopts this method of apportioning the Refund in this case. The Court is aware that other courts adopting the “50/50 refund rule” have permitted rebuttal evidence based on the history of the spouses’ financial independence. Innis, 331 B.R. at 789. This Court respectfully disagrees and will allow only the narrow rebuttal evidence permitted by the court in Innis." }, { "docid": "10899099", "title": "", "text": "refund. Instead, the refund is divided equally, based on an application of § 326 of the New York Domestic Relations Law (“DRL”) regarding division of marital property in a divorce proceeding. In re Hejmowski, 296 B.R. at 648-49; In re Marciano, 372 B.R. at 216; In re Barrow, 306 B.R. at 31; and In re Glenn, 430 B.R. at 62. The argument for adopting the 50/50 Rule in New York is that the DRL “offers an illustrative definition [of marital property] that provides a useful device for apportioning ownership.” In re Marciano, 372 B.R. at 215; see also In re Hejmowski, 296 B.R. at 649-50. The Bankruptcy Court in In re Marciano opined on the fairness of a 50/50 division, and proffered that the Second Circuit Court of Appeals relied on DRL § 326 to determine the scope of property of the estate in a Chapter 7 proceeding. 372 B.R. at 215 (citing Musso v. Ostashko, 468 F.3d at 99). Some courts treat the 50/50 division as a rebutta-ble presumption, which may be adjusted based on evidence of the spouses’ present conduct or history of financial management between the parties. See In re Barrow, 306 B.R. at 31; and In re Marciano, 372 B.R. at 216-17. While the 50/50 Rule is simple to apply and has at first blush the appearance of fairness in its treatment of the parties, it has its detractors. The major criticism rests on the fact that domestic relations laws serve a very different purpose than bankruptcy law and are in fact inconsistent with the policies informing bankruptcy law. In re Crowson, 431 B.R. at 489. As the Court in Croivson notes: [the] laws of marital dissolution require a just and equitable division of property between spouses based upon the means and needs of each. In bankruptcy, the court is concerned with whether the debtor has a property interest that is available for distribution to creditors, not whether a non-debtor spouse might have a greater need for the debtor’s property. Moreover, laws regarding the equitable distribution of marital property do not purport to establish property rights" }, { "docid": "8615310", "title": "", "text": "proportionately. One such approach to allocating the ownership of joint tax refunds holds that a joint refund should be allocated between spouses based upon the individuals’ respective tax withholdings during the taxable year. Id. at *1. As such, a non-debtor spouse who had no tax with-holdings during the relevant taxable year is not entitled to any portion of the tax refund, with the rationale that one who pays no taxes is not entitled to a refund. Id.; see also In re Kleinfeldt, 287 B.R. 291 (10th Cir. BAP 2002); In re Gleason, 193 B.R. 387 (Bankr.D.N.H.1996). A third approach, known as the Separate Filings Rule or Internal Revenue Service Formula, requires a determination of what each spouse’s contributions and tax liabilities would have been if filed separately, and applies that proportion to the joint tax refund resulting from filing the joint return. See In re Crowson, 431 B.R. 484, 491-96 (10th Cir.BAP2010). The Separate Filings Rule or Internal Revenue Service Formula apportions the refund between spouses based upon their respective tax liability and contributions, which may also allocate credit for nonfinancial contributions in the nature of tax credits. Id. As mentioned earlier, here, the Bankruptcy court elected to use the 50/50 allocation and the Court’s analysis will begin with this approach. B. The 50/50 Approach The Trustee has offered several arguments as to why the 50/50 Approach should be applied in this case and in the Southern District of Indiana in general. First, the Trustee argues that because Mr. Lee, by filing the joint Returns, would have been jointly and severally liable for any tax deficiency arising from the Returns, even if such deficiency was solely due to Mrs. Lee’s income, he should have a corresponding joint interest in the Refund. See 26 U.S.C. § 6013(d)(3) (“[I]f a joint return is made, tax shall be computed on the aggregate income and the liability with respect to the tax shall be joint and several.”). Although this rationale has been used by other courts in deciding this issue, see Smith, 2011 WL 345865, at *2; In re Aldrich, 250 B.R. 907, 913" } ]

[ { "docid": "176860", "title": "", "text": "New York, New Jersey, Connecticut and Pennsylvania for use in the production of goods and the transportation of goods in interstate commerce; that a substantial number of the lessees are engaged in the production of goods in interstate commerce and in the transportation, sale and distribution of goods in interstate commerce and that the leased motor vehicles are regularly and continuously used by the lessees in the production of goods for interstate commerce and in the transportation and sale of goods in interstate commerce; that a substantial number of firms and individuals leasing motor trucks from defendant are engaged in the wholesale distribution of goods, and that the leased vehicles are regularly and continuously used by such wholesalers and distributors in the purchase, sale, transportation and distribution of goods in interstate commerce. The complaint alleges further that defendant employs over one hundred men engaged as mechanics, greasers, washers, floormen, shifters and “trouble shooters”, in the garaging, maintaining and repairing of defendant’s motor vehicles; that these employees are performing duties in interstate commerce and are employed in the production of goods for interstate commerce ; that between October 24, 1938, and October 23, 1939, defendant employed many of these employees for workweeks longer than 44 hours, during the following year defendant employed many of them for workweeks longer than 42 hours, and since October 24, 1940, defendant has employed many of its employees for workweeks longer than 40 hours, and failed and refused to compensate them for their overtime employment at rates not less than one and one-half times the regular rates at which they were employed; that defendant in fact failed and refused to compensate its employees for such excess hours at any rates greater than the regular rates at which they were employed. The complaint also alleges that defendant, in failing to pay' its employees the required overtime compensation, has violated and is violating the provisions of Sections 7 and 15(a) (2) of the Act. It is also alleged that defendant has failed to keep adequate records of wages, hours and other conditions of employment in accordance with the" } ]

[ { "docid": "4711392", "title": "", "text": "have worked, he has submitted figures for only a portion of what he claims to be due him amounting to $604.90 but approximates the total at $1,700. He also claims an additional amount as liquidated damages equal to such unpaid compensation as may be found to be due him, making the total claimed as salary or wages approximately $3,400, together with reasonable attorney’s fee and costs of the action, relying upon the provisions of section 16(b) of the Act, 29 U.S.C.A. § 216(b). This case was previously before the Court on a motion of the defendant to dismiss the bill of complaint, on the ground that this Court had no jurisdiction to determine, in advance of a ruling by the Interstate Commerce Commission, whether the plaintiff is one whose activities affect the safety of operation of interstate motor vehicles, within the meaning of Sec. 13(b) (1) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(b) (1), exempting employees with respect to whom the Commission has power to establish requirements concerning qualifications and maximum hours for service. This section is as follows: “The provi-sions of section 207 [fixing maximum' hours of work] shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; 49 U.S.C.A. § 304(a) (1) and (2) which is part of the Motor Carrier Act of 1935, provides as follows: “Powers and duties generally. It shall be the duty of the Commission— “(1) To regulate common carriers by motor vehicle as provided in this chapter, and to that end, the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment. “(2) To regulate contract carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to uniform systems of accounts," }, { "docid": "5877240", "title": "", "text": "Rent-Way must also establish that Plaintiffs’ duties affected highway safety in the interstate transportation of goods. Plaintiffs insist that, even if their trips to Ohio and deliveries of special order items involve interstate commerce, the motor carrier exemption should not be applied because, in Plaintiffs’ opinion, Rent-Way has failed to prove these occurrences constituted more than a de minimis portion of their job responsibilities. Otherwise stated, Plaintiffs maintain that their involvement in interstate commerce, if any, was at best de minimis, thereby rendering them non-exempt employees. We are not persuaded that Plaintiffs’ “de minimis theory” defeats application of the motor carrier exemption in this case. In determining whether an employee’s job responsibilities have a substantial impact on interstate commerce highway safety, it is the nature of the employee’s regular job duties that is most important, not necessarily the percentage of the employee’s involvement in duties affecting highway safety in interstate commerce: ... As a general rule, if the bona fide duties of the job performed by the employee are in fact such that he is (or, in the case of a member of a group of drivers . i. employed by a common carrier and engaged in safety-affecting occupations, that he is likely to be) called upon in the ordinary course of his work to perform, either regularly or from time to time, safety-affecting activities .... he comes within the exemption in all workweeks when he is employed at such job.[T]he rule applies regardless of the proportion of the employee’s time or of his activities which is actually devoted to such safety-affecting work in the particular workweek, and the exemption will be applicable even in a workweek when the employee happens to perform no work directly affecting “safety of operation.” 29 C.F.R. § 782.2 (2004) (emphasis supplied). See also Rules and Regulations of THE DEPARTMENT OF TRANSPORTATION, FEDERAL Highway Administration, “Application of the Federal Motor Carrier Safety Regulation,” 46 FR 37902-02, 1981 WL 115508 at *37902 (July 23, 1981) (“[E]ven a minor involvement in interstate commerce as a regular part of an employee’s duties will subject that employee to the" }, { "docid": "6253184", "title": "", "text": "TRIMBLE, District Judge. The plaintiff in this action is an assistant truck driver or helper, employed in delivering goods, wares and merchandise manufactured by the defendant, and in bringing to the defendant, from out of the state, certain raw materials and supplies from which it manufactures furniture. He brings this action for compensation under the Fair Labor Standards Act of 1938, and amendments thereto, 29 U.S.C.A. §§ 201-219, both for himself, and by amendment to his complaint, for Roy Roderick, a fellow employee similarly situated, alleging that they are engaged in the service of the defendant and that the defendant is engaged in interstate commerce. The defendant by stipulation of counsel in open court admits that it is engaged in the manufacture of furniture which it sells, in part at least, in interstate commerce, and that the plaintiff herein is engaged in part in transporting the furniture which the defendant produces in interstate commerce. For the purposes of the issue before the court it may be assumed that the plaintiff’s testimony that he had worked on an average of a hundred hours a week for the time alleged in his complaint is true, and it is uncontradicted that his rate of pay was fifteen dollars per week. The plaintiff introduced his evidence in chief and rested, whereupon defendants filed a motion to dismiss the action, its contention being that the plaintiff cannot recover for the reason that under the provisions of the Fair Labor Standards Act of 1938, Chapter 676, Sec. 13, 52 Stat. 1060, Title 29, Section 213, U.S.Code, and amendments thereto, 29 U.S.C.A. § 213, the plaintiff and those in his class, are especially exempted from the provisions of the Fair Labor Standards Act of 1938. This action is brought under the provisions of Section 207, 29 U.S.C.A., which is Section 7, 52 Stat. 1063, the Fair Labor Standards Act of 1938, which provides for maximum hours of service, and, if applicable here, would prohibit the employment of the plaintiff and those similarly employed for a period of more than forty-four hours per week, without additional compensation, and" }, { "docid": "14429963", "title": "", "text": "WOODROUGH, Circuit Judge. The Administrator of the Wage and Hour Division, United States Department of Labor, brought this action to enjoin defendants James Friend et al., co-partners, doing business as Owen Bros. & Friend Livestock Commission Company, from violating Sec. 15(a) (1, 2, 5) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (1, 2, 5). It was alleged that defendants were engaged in interstate commerce and subject to the provisions of the Act, and that they violated the Act by failing to keep required records and by requiring employees to work overtime without paying additional compensation for such work. The District court held that the employees involved were neither engaged in commerce nor in the production of goods for commerce and were, therefore, not within the protection of the Act, and dismissed the complaint. See Walling v. Friend, D.C., 63 F.Supp. 143. The case is before us on plaintiff’s appeal from the decree dismissing the complaint. The controlling facts are not controverted. Defendants are engaged in business in Joplin, Missouri, and act as brokers in selling livestock on commission basis for farmers and stock producers. Defendants rent office space from the Joplin Stockyards Company and use cattle pens, scales and other equipment of the stockyards company necessary to conduct their business. Livestock is consigned and shipped to defendants for sale, and on arrival at the stockyards the stock is sorted, graded and occasionally watered by defendants’ employees. Upon sale, the stock is weighed by employees of the stockyards company and delivered to the purchaser. Ten to twenty percent of the consignors give out-of-state addresses when shipping livestock to defendants, and approximately 50 percent of stock sold by defendants is purchased by packers who ship most of it out of the state. Defendants have nothing to do with shipping in, billing out or transportation of the livestock sold. This suit involves two office employees of defendants who perform clerical duties, including bookkeeping, accounting and ledger work. They prepare statements for sellers showing gross proceeds of sales, defendants’ commissions and other expenses, and pay sellers net amounts due. They also" }, { "docid": "14325391", "title": "", "text": "of the time in any particular hour or week was devoted to any one of or to all these miscellaneous tasks. Conclusions of Law. 1. The essential question in this case is whether the plaintiff, who admittedly would otherwise be within § 7 of the Fair Labor Standards Act, is removed from its operation by § 13(b). That subsection states in part that “The provisions of section 7 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act.” 52 Stat. 1060, 1068, 29 U.S.C.A. § 213(b). 2. The findings show that the plaintiff spent two-thirds of his total time washing trucks and one-third loading and driving trucks of a common and contract carrier in interstate and intrastate commerce. If substantially all his time had been spent loading and driving trucks, the Interstate Commerce Commission, under §' 204 of the Motor Carrier Act, 49 U.S.C.A. § 304, would have had power to establish maximum hours for him, the power would have been exercised, and he would have been within the exemption of § 13(b) of the Fair Labor Standards Act. I.C.C. Ex Parte No. MC-2; I.C.C. Ex Parte No. MC-3; United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Richardson v. James Gibbons Co., 4 Cir., 132 F.2d 627; Robbins v. Zabarsky, D.C.D.Mass., 44 F.Supp. 867. But where, as here, only one-third of his time is so spent at loading and driving and the rest at washing, the problem is more difficult. 3. Numerous issues are raised: (1) does § 204 of the Motor Carrier Act give the Interstate Commerce Commission the power to establish maximum hours for employees who spend only one-third of their total working time and in many weeks only one-tenth of their time at loading and driving; (2) if § 204 of the Motor Carrier Act gives the power, has the Commission exercised it; (3) if the Commission has the power but" }, { "docid": "19123578", "title": "", "text": "the Fair Labor Standards Act, it is unnecessary to consider the question of whether they were engaged in the production of goods for interstate commerce within the meaning of that Act. The judgment is affirmed. “No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce * * * for a work week longer than forty hours after the expiration of the second year from such date, 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.” See note (1) supra, and Section 3(j) of the Fair Labor Standards Act provides as follows: “For the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” 29 U.S.C.A. § 203 «)• Section 13 (b) (1) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(b) (1), which exempts employees with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum ho'urs of service is as follows: “(b) The provisions of section 207 of this title shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 304 of Title 49.” That part of the Motor Carrier Act of 1935 which fixes the scope of the power of the Interstate Commerce Commission referred to in the above-quoted section of the Fair Labor Standards Act is as follows: Section 302 Title 49 U.S.C.A. “(a) The provisions of this chapter apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of" }, { "docid": "14325393", "title": "", "text": "has not exercised it, does § 13 (b) of the Fair Labor Standards Act give an exemption [see United States v. American Trucking Associations, Richardson v. James Gibbons Co., Robbins v. Zabarsky, all supra]; (4) if the Commission has the power and either the Commission has exercised it, or there is no need that it should before § 13(b) applies, does § 13(b) give an exemption for a whole week if the employee was during a substantial part (or as in the case at bar, the greater part), of that week engaged in duties not connected with safety of operation but was “engaged in commerce or in, the production of goods for commerce”; [See Wage and Hour Administration Bulletin No. 9, as amended, ¶ 5(c) and ¶ 5 note 6; Anuchick v. Transamerican Freight Lines, Inc., D.C.E.D. Mich., 46 F.Supp. 861, 865; McKeown v. Southern California Freight Forwarders et al., D.C.S.D.Cal. March 31, 1943, 49 F.Supp. 543; Lewis v. Nailling, D.C.W.D. Tenn., 36 F.Supp. 187. Compare the last paragraph of Walling v. Jacksonville Paper Co., January 18, 1943, 317 U.S. 564, 63 S.Ct. 332, 87 L.Ed. -. Compare the somewhat analogous problems raised by Wage and Hour Administration, Regulations §§ 541.1F; 541.3(4); 541.4(B); 541.5(B); Report and Recommendations of Presiding Officer in the Matter of Proposed Amendments to Part 541 of Regulations, Oct. 10, 1940, §§ VI and VIII, C.C.H. Labor Law Service ¶¶ 31,302.22; 31,-302.23; 31,302.24; 31,302.63]; and (5) if § 13(b) does give an exemption to an employee who divides his work between commerce involving safety of operation and commerce not involving safety of operation, is the exemption for the work week or for some shorter or longer time (such as the hour or the month) during which the employee is engaged in activities affecting the safety of operations? 4. It is unnecessary for present proposes to resolve all these issues. Let it be assumed arguendo that the Interstate Commerce Commission has power to regulate the hours of an employee who is one-third of the time a driver and loader and two-thirds of the time a washer; and that" }, { "docid": "6253185", "title": "", "text": "on an average of a hundred hours a week for the time alleged in his complaint is true, and it is uncontradicted that his rate of pay was fifteen dollars per week. The plaintiff introduced his evidence in chief and rested, whereupon defendants filed a motion to dismiss the action, its contention being that the plaintiff cannot recover for the reason that under the provisions of the Fair Labor Standards Act of 1938, Chapter 676, Sec. 13, 52 Stat. 1060, Title 29, Section 213, U.S.Code, and amendments thereto, 29 U.S.C.A. § 213, the plaintiff and those in his class, are especially exempted from the provisions of the Fair Labor Standards Act of 1938. This action is brought under the provisions of Section 207, 29 U.S.C.A., which is Section 7, 52 Stat. 1063, the Fair Labor Standards Act of 1938, which provides for maximum hours of service, and, if applicable here, would prohibit the employment of the plaintiff and those similarly employed for a period of more than forty-four hours per week, without additional compensation, and provides for the payment of certain penalties. Section 213, Title 29, U.S.Code, 29 U.S. C.A. § 213, provides (so far as applicable) : “(b) The provisions of section 207 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49.” U.S.Code. Section 304 of Title 49, U.S.Code, 49 U.S.C.A. § 304, provides (in so far as applicable) : “Powers and duties' of commission (a) It shall be the duty of the Commission— * * * “(3) To establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours • of service of employees, and standards of equipment. * * * ” From this it clearly appears that the Interstate Commerce Commission has power to establish “qualifications and maximum hours of service” pursuant to that section, for the plaintiff and those" }, { "docid": "19370095", "title": "", "text": "ORR, Circuit Judge. Appellants are enaged in the transportation business which includes the transportation of goods, wares and merchandise, machinery and materials, to manufacturing concerns within the state of California, who use such transported materials for the production of goods for interstate commerce. Appellees Jay C. Davis and Julian R. Felix, are employed by appellant as body builders in the building and repair of automotive bodies. The remaining appellees were employed by appellant in the servicing of automotive equipment used by it in its transportation business. Appellees brought this action to collect wages alleged to be due them for hours worked in excess of the work weeks established by sections 7 (a) (1) (2) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 207(a) (1-3). Appellant defended upon the ground that its employees do not come within the provisions of the Fair Labor Standards Act because the work performed for it by them did not constitute a substantial part of work in interstate commerce. As a further defense appellant contends that, in the event it be held a substantial part of said work was in interstate commerce, the automotive mechanics are exempt from the provisions of the Fair Labor Standards Act under § 13(b) of said Act, 29 U.S.C.A. § 213(b), because their duties affect safety of operation and the Interstate Commerce Commission has power to establish qualifications and maximum hours of service for them pursuant to the provisions of § 204 of the Motor Carrier Act of 1935, 49 U.S.C.A §304. The trial court found that the automotive mechanics and the body repairmen spent 7% of their total time each week in work necessary to the production and transportation of goods in interstate commerce; and that the 7% of the total activities of the automotive mechanics affected safety of operation in interstate commerce. The court concluded as a matter of law that appellees spent a substantial period of their total time each week in work devoted to interstate commerce and thus came within the terms of the Fair Labor Standards Act. It concluded further that the 7% of" }, { "docid": "20148546", "title": "", "text": "the production of goods for interstate commerce, minimum wages and maximum hours, and further to prohibit the shipment in interstate commerce of all goods for the production of which oppressive child labor had been employed. Certain exemptions were provided for, none of which has any applicability here except the exemption provided for by Section 13(b) (1), U.S.C.A. Title 29, § 213(b) (1), hereinafter referred to. Keeping in mind the purposes of the act, it seems only necessary as to this phase of the case to make these pertinent inquiries in regard to the plaintiff: Who employed him; who fixed and paid his wages; and who determined his hours of labor? Obviously, the defendant did all these things. Other aspects of, or consequences of, the employer-employee relationship, seem to me to have no bearing here. Therefore, I must conclude that, certainly for the purposes of this act, defendant, and not the United States, was the employer of the plaintiff. The only case which has been cited to me, or which I am able to find, directly on this question, is Fleming, Adm’r, etc., v. Gregory, D.C., 36 F.Supp. 776, and in this case the District Court arrived at the same conclusion as the one I have just stated. See, also, National Labor Relations Board v. Carroll, 1 Cir., June 11, 1941, 120 F.2d 457, which, in applying the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., arrives at the same conclusion. (5) The next issue is presented by defendant’s contention that it is exempted from the operation of Section 7 of the Act, 29 U.S.C.A. § 207, relating to maximum hours of labor, by virtue of Section 13(b) (1) of the Act, 29 U.S.C.A. § 213 (b) (1), which is as follows: “The provisions of section 207 shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; or (2) any employee of an employer subject to the provisions of Part I of" }, { "docid": "5037435", "title": "", "text": "trips to Arkansas, on the order of one per week on the average, in the pickup truck, carrying tools and supplies to perform maintenance and repair work on the Arkansas system. The Court concludes that all three plaintiffs drove defendant’s trucks in interstate commerce, carrying assorted tools, equipment and supplies for repair and maintenance of the pipeline system, and that their driving constituted over half their duties. The plaintiffs’ duties, therefore, had a substantial effect on the safety of defendant’s operation involving interstate transportation by motor vehicle. CONCLUSIONS OF LAW In 1938, Congress found working conditions substandard for many laborers. The situation, Congress found, inter alia, caused a burden on commerce and the free flow of goods in commerce and interfered with the orderly and fair marketing of goods in commerce. 29 U.S.C. § 202(a). Congress then took it upon itself to regulate interstate and foreign commerce in such a manner as to alleviate the deplorable conditions. Id. § 202(b). The Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., had a two-pronged purpose of establishing a minimum wage and setting forth a maximum workweek beyond which overtime compensation would be due to qualifying employees. 29 U.S.C. §§ 206, 207. Section 207(a)(1) contains the foundation for the overtime provisions, stating that “no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce . . . 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.” The Act, in § 213, exempts certain employers and their employees from its coverage. Subsection (a) allows exemption from both minimum wage and overtime provisions to certain classes of employees. Subsection (b) exempts employees of certain employers and employees engaged in particular industries from the overtime provisions only. Because of the importance of the overtime provisions in fostering the smooth flow of interstate commerce, the employer seeking the exemption" }, { "docid": "14325392", "title": "", "text": "would have had power to establish maximum hours for him, the power would have been exercised, and he would have been within the exemption of § 13(b) of the Fair Labor Standards Act. I.C.C. Ex Parte No. MC-2; I.C.C. Ex Parte No. MC-3; United States v. American Trucking Associations, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345; Richardson v. James Gibbons Co., 4 Cir., 132 F.2d 627; Robbins v. Zabarsky, D.C.D.Mass., 44 F.Supp. 867. But where, as here, only one-third of his time is so spent at loading and driving and the rest at washing, the problem is more difficult. 3. Numerous issues are raised: (1) does § 204 of the Motor Carrier Act give the Interstate Commerce Commission the power to establish maximum hours for employees who spend only one-third of their total working time and in many weeks only one-tenth of their time at loading and driving; (2) if § 204 of the Motor Carrier Act gives the power, has the Commission exercised it; (3) if the Commission has the power but has not exercised it, does § 13 (b) of the Fair Labor Standards Act give an exemption [see United States v. American Trucking Associations, Richardson v. James Gibbons Co., Robbins v. Zabarsky, all supra]; (4) if the Commission has the power and either the Commission has exercised it, or there is no need that it should before § 13(b) applies, does § 13(b) give an exemption for a whole week if the employee was during a substantial part (or as in the case at bar, the greater part), of that week engaged in duties not connected with safety of operation but was “engaged in commerce or in, the production of goods for commerce”; [See Wage and Hour Administration Bulletin No. 9, as amended, ¶ 5(c) and ¶ 5 note 6; Anuchick v. Transamerican Freight Lines, Inc., D.C.E.D. Mich., 46 F.Supp. 861, 865; McKeown v. Southern California Freight Forwarders et al., D.C.S.D.Cal. March 31, 1943, 49 F.Supp. 543; Lewis v. Nailling, D.C.W.D. Tenn., 36 F.Supp. 187. Compare the last paragraph of Walling v. Jacksonville Paper Co.," }, { "docid": "23346339", "title": "", "text": "did the court err in holding that appellant’s truck drivers are not exempt from the operation of the statute under § 13(b) (1), which provides that the overtime provisions of the Fair Labor Standards Act shall not apply to “any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 204 of the Motor Carrier Act, 1935.” The Supreme Court, in construing this exemption, held that the power of the Interstate Commerce Commission under § 204 of the Motor Carrier Act, 49 U.S.C.A. § 304 “is limited to those employees whose activities affect the safety of operation.” United States v. American Trucking Assns., 310 U.S. 534, 60 S.Ct. 1059, 1069, 84 L.Ed. 1345. The activities of appellant’s truck drivers do not fall within this category. It was held in Fletcher v. Grin-nell Bros., 6 Cir., 150 F.2d 337 that the exemption applies only if the employees in question have devoted a substantial part of their time to driving motor vehicles in interstate commerce. Here it was found that the truck drivers spent a substantial portion of their time in activities other than truck driving, and that a major portion, and frequently all of their time, was spent in making intrastate deliveries necessary to the production of goods for commerce. The only evidence on this point presented by appellant was that of two drivers who made occasional deliveries across state lines. This testimony clearly is not of the substantial character required to render the exemption applicable. A closer question is presented by appellant’s objection that the District Court erred in taxing in the costs $560.72 which was alleged to have been expended in making proof of facts which appellant refused to admit or deny. The sum consisted of amounts paid as salary and per diem allowance for the senior attorney in the office of the solicitor for the United States Department of Labor, a senior inspector, and an inspector, who were engaged for a number of days in examining the books and records of the appellant." }, { "docid": "5253164", "title": "", "text": "SMITH, District Judge. This action is brought by the plaintiff as Administrator of the Wage and Hour Division of the United States Department of Labor to enjoin alleged violations by the defendant of the Fair Labor Standards Act. Act of June 25, 1938, c. 676, 52 Stat. 1060, 29 U.S.C.A. § 201 et seq. The alleged ’do-tations are based upon the practice of the defendant of working some foriy-odd powerhouse employees forty-eight hours a week without paying them time and one-half for the hours worked over forty per week. The defendant is a local trolley and motor bus carrier, operating trolley lines in and about New Haven and bus lines also located solely within the State of Connecticut. It originally built, and added to, its powerhouse for the purpose of furnishing current to its electric trolley lines. It also has sold, and sells, minor amounts of current to several tenants who run amusement parks. To promote the efficient operation of the powerhouse as more and more of its lines were changed over from electric trolley to motor bus service, it has sold increasing amounts of power, which it could economically generate and which were surplus to its own needs, to the New Haven Railroad, the sole owner of the capital stock of the defendant. It also sells a small amount of electric power to the City of New Haven for the operation of its drawbridges. This drawbridge power and the power purchased by the railroad are used in the transportation of persons and goods in interstate commerce. In recent years, the proportion of power generated by the defendant which has been sold for all these purposes has averaged between twenty and thirty percent, the proportion in 1944 amounting to some nineteen and a fraction, percent. £l] There are two questions presented: First, whether the powerhouse employees are engaged in (interstate) commerce or the production of goods for (interstate) commerce. There seems little question about this since a substantial part of the goods produced by them is produced to be used in interstate commerce, that is, the current which goes into" }, { "docid": "5253166", "title": "", "text": "the operation of the New Haven Railroad and the drawbridges of the city. Some of the current sold to the railroad flows across state lines. The proportion of the current produced at different hours which is produced for commerce varies greatly, but there is no time during the week when some substantial amount is not being produced for this purpose by the efforts of all the powerhouse employees then working. It is not possible to segregate the time spent by the employees into time spent producing power solely for the operation of the trolley lines and time spent producing power for sale for use in interstate commerce. It is true that this sale of power for interstate commerce amounts to less than one percent of the total revenues of the defendant. It is not, however, sporadic or occasional or insubstantial in total amount. Therefore, all employees who spend any substantial part of their time in any workweek in the production of power are engaged in interstate commerce and are, as a consequence, covered by the Act unless within one of the Act’s exemptions. New Mexico Public Service Co. v. Engel, 10 Cir., 1944, 145 F.2d 636, 640. The second question presented is whether these powerhouse employees, even though engaged in interstate commerce or the production of goods for interstate commerce, are exempt from the Act because of Section 13(a) (9) of the Act which states that the maximum hour provisions shall not apply with respect to “any employee of a street, suburban, or interurban electric railway or local trolley or motorbus carrier.” It is conceded that the defendant is a local trolley or motor bus carrier. The plaintiff contends, however, that the exemption is to be strictly construed and is not to be held to apply to employees of the defendant engaged in any other business of the defendant than that which is strictly carriage by local trolley or motor bus. Since only about ten percent of all local trolley lines in the United States manufacture their own power, it is contended by the plaintiff that the powerhouse operation is" }, { "docid": "20937848", "title": "", "text": "what is more than “de mini-mis” and what is “substantial” approaches the field of metaphysics, yet it would seem that there is a difference, and that under the Fair Labor Standards Act that the time spent by an employee “in commerce” could be more than “de minimis” without being “substantial”, and that there is an area in which the activities can be more than “de minimis” and still be “unsubstantial” so far as the Fair Labor Standards Act is concerned. It seems that what time or portion of time spent by an employee “in commerce” could be classed as passing from unsubstantial to substantial, could be affected by the nature and conditions of employment. In the case of New Mexico Public Service Co. v. Engel, 10 Cir., 1944, 145 F.2d 636, 640, in a Fair Labor Standards Act case, the Court in referring to the plaintiff employee states : “If the services he performs are essential to the movement of commerce and not merely sporadic and isolated, he is engaged in commerce within the meaning of the Act.” In the case of Brown v. Minngas Co., D.C.Minn.1943, 51 F.Supp. 363, there was presented a situation somewhat similar to the instant case in that the portion of the particular employee’s time spent in interstate activities varied greatly from week to week. The Court in that case on page 369 of 51 F.Supp. states: “In the instant case the plaintiffs worked in commerce within the meaning of the Act only fifteen minutes some weeks. Other weeks they worked thirty minutes; others forty-five minutes; others one hour; and so on until some weeks they worked over twenty hours in commerce within the meaning of the Act. In several weeks Virgil Brown worked over 45 hours in commerce. There is no logical point where it can be said that a sufficient difference exists between the hours spent one week and the number of hours spent another week so as to justify a holding that one week the plaintiff was not within the Act and another week he was. Further, defendant’s interstate sales have ranged" }, { "docid": "8062926", "title": "", "text": "DOBIE, Circuit Judge. This was a civil action instituted b’y Wilson Richardson (hereinafter called Richardson) as plaintiff, against The James Gibbons Company (hereinafter called Gibbons) as defendant, for alleged overtime compensation, for liquidated damages, and also for a reasonable attorney’s fee. These claims were all based on the provisions of Section 16(b) of the Fair Labor Standards Act, Act of June 25, 1938, 29 U.S.C.A. § 201 et seq. The District Judge sustained a motion of the defendant Gibbons to dismiss the action, holding that Richardson was not within the scope of the Fair Labor Standards Act by virtue of the terms of Section 13(b) of the Act, 29 U.S.C.A. § 213(b) which reads: “The provisions of section 207 [of this title] shall not apply with respect to (1) any employee with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service pursuant to the provisions of section 304 of Title 49; * * Under the stipulation of facts filed in this case, “Richardson was employed by the Defendant Company from October 24, 1938, to September 4, 1940, as a distributor-operator and a truck driver. His duties consisted of distributing and hauling asphalt.” Again, under the stipulation, according to the testimony of Richardson, he was employed, during the period in question “twenty-five per cent of the time as a truck driver and seventy-five per cent of the time as a distributor-operator”; while, according to the testimony of defendant, Richardson “was employed approximately thirty per cent of the time in distributing the asphalt and seventy per cent in transporting same.” The pertinent portions of the Motor Carrier Act are: “Sec. 204 [§ 304]. (a). It shall be the duty of the Commission— “(1) To regulate common carriers by motor vehicle as provided in this part [chapter], and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment. “(2) To" }, { "docid": "4711391", "title": "", "text": "for less than one-third of the total period of plaintiff’s employment. This data shows that during this period of thirty weeks, plaintiff worked on an average of sixty-five hours a week. But it also appears that plaintiff was hired to work for no specific number of hours per day or week; that his periods of work varied greatly from day to day; that he regulated his on-duty hours according to his ow.n judgment as to what was necessary ; that his work weeks ended on Thursday; that he was paid his weekly salary regardless of absent time; that for at least two work weeks during the per-, iod from October 24, 1938, to October 23, 1939, he was on 'duty as long as eighty hours, and that in at least three of the weeks during the period from October 23, 1939, until he left the Company, namely, October 19, 1940, he was on duty as much as seventy-five hours. Since, as above explained, plaintiff has only a partial record of the hours he claims to have worked, he has submitted figures for only a portion of what he claims to be due him amounting to $604.90 but approximates the total at $1,700. He also claims an additional amount as liquidated damages equal to such unpaid compensation as may be found to be due him, making the total claimed as salary or wages approximately $3,400, together with reasonable attorney’s fee and costs of the action, relying upon the provisions of section 16(b) of the Act, 29 U.S.C.A. § 216(b). This case was previously before the Court on a motion of the defendant to dismiss the bill of complaint, on the ground that this Court had no jurisdiction to determine, in advance of a ruling by the Interstate Commerce Commission, whether the plaintiff is one whose activities affect the safety of operation of interstate motor vehicles, within the meaning of Sec. 13(b) (1) of the Fair Labor Standards Act, 29 U.S.C.A. § 213(b) (1), exempting employees with respect to whom the Commission has power to establish requirements concerning qualifications and maximum hours" }, { "docid": "20937843", "title": "", "text": "commerce” within the scope of the Act. It is the view of the plaintiff that because he drove across state lines to work on service stations that thereby his service station work took on an interstate character. An employee can engage in the production of goods for interstate commerce or engage in interstate commerce without crossing a state line. An employee can cross state lines to do purely intrastate work. For example a journeyman piano tuner may cross state lines repeatedly tuning pianos for local householders without being engaged in production of goods for interstate commerce or in interstate commerce. The test would seem to be as to what activities an employee was engaged in after he crossed the state line, unless of course he was transporting goods across the state line. It is believed that the character of work the plaintiff did at service stations in other states was not changed by the fact that he crossed state lines to perform such work. The plaintiff at times carried across state lines repair parts and other material needed in connection. with his work, but such items were so few and small as to be without legal significance. It is not necessary that an employee spend his whole time “in commerce” to be within the Act. If a substantial part of his work is “in commerce” he comes within the scope of the Act. Fleming v. Jacksonville Paper Co., supra; Fleming v. Knox, D.C.Ga.1941, 42 F.Supp. 948. Where an employee is engaged in both intrastate and interstate work in order to recover under the Act he must establish what part of his work was interstate work and that a substantial portion of his activities were in the interstate work. Schwarz v. Witwer Grocer Co., 8 Cir., 1944, supra. Under the Fair Labor Standards Act a single work week is the standard. Interpretative Bulletin No. 4, November 1940, Office of the Administrator of the Wage and Hour Division. The Act itself, 29 U.S.C.A § 207, treats a week as the unit. Overnight Motor Co. v. Missel, supra. If a substantial part of" }, { "docid": "16268354", "title": "", "text": "and time off duty of all drivers and reported accidents in accordance with the rules of the Commission. “The equipment operated by defendant was in conformance with the requirements of the Interstate Commerce Commission and during the period involved defendant maintained a terminal at Louisville, where its drivers were more or less stationed and during the period involved seventy-five percent of its entire operation and business was in interstate commerce and in excess of fifty percent of its business conducted at its Louisville terminal moved in interstate commerce.” Reynolds’ activities affected safety of operation in interstate commerce, and hence the Interstate Commerce Commission has the power to establish his qualifications and maximum hours of service, as well as those of his co-appellees. On the other hand, the driving of a truck entirely within a state, which Reynolds did for 39 weeks, has been held to fall within § 207 of the Fair Labor Standards Act, even though the employer performed certain services in interstate commerce. Griffin Cartage Co., Inc., v. Walling, 6 Cir., 153 F.2d 587; West Kentucky Coal Co. v. Walling, 6 Cir., 153 F.2d 582. In ruling that the appellant was not exempt from the operation of the Fair Labor Standards Act although it is a carrier in interstate commerce and therefore subject to the jurisdiction of the Interstate Commerce Commission, the District Court followed the rule at that time frequently observed in the lower federal courts, that the exemption of § 213(b) (1) applies only if the employees in question have spent a substantial amount of their working time driving motor vehicles in interstate commerce. West Kentucky Coal Co. v. Walling, supra; Fletcher v. Grinnell Bros., 6 Cir., 150 F.2d 337. The District Court held that the work week is the unit of time which determines whether the employee is under the supervision of the Interstate Commerce Commission or the Wage and Hour Administrator, commenting that in the case of Levinson v. Spector Motor Service, 330 U.S. 649, 67 S.Ct. 931, the Supreme Court by inference determined that this was the applicable unit of time. Since Reynolds," } ]

[ { "docid": "22943351", "title": "", "text": "subjective belief to support a retaliation claims, which would have been insufficient to withstand summary judgment. The district court averred that Jones failed to offer an explanation for the two month lapse of time between the deposition and the filing of the EEOC claim. Moreover, the court observed that Jones’ proposed amended claim came nearly nine years after his initial accusation of racial bias, one year after the suit was filed and eight months after the established amendment deadline had lapsed. Because of Jones’ delay in filing his amendment, the district court held that Jones’ motion for leave to amend his complaint should be denied. Upon review of the record, we do not find that the district court abused its discretion in so ruling, and accordingly, we affirm the district court’s ruling. Rule 15(a) requires a trial court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (citation omitted). A district court must possess a “substantial reason” to deny a request for leave to amend, id., but “leave to amend is by no means automatic.” Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir.1994) (citation omitted). Decisions concerning motions to amend are “entrusted to the sound discretion of the district court[.]” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (citation omitted). In deciding whether to grant leave to amend, the district court may consider a variety of factors in exercising its discretion, including undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (5th Cir.1981). RPG asserts that Jones unduly delayed amending his complaint to add the retaliation claim and that it will be prejudiced by Jones’ untimeliness. Jones bears the burden of showing that a delay was “" } ]

[ { "docid": "4031917", "title": "", "text": "Law “Rule 15(a) requires a trial court to grant leave to amend freely, and the language of this rule evinces a bias in favor of granting leave to amend.” Jones v. Robinson Prop. Grp., LP, 427 F.3d 987, 994 (5th Cir.2005) (citation and internal quotation marks omitted). Leave to amend is in no way automatic, but the district court must possess a “substantial reason” to deny a party’s request for leave to amend. Id. (citation and internal quotation marks omitted). The district court is entrusted with the discretion to grant or deny a motion to amend and may consider a variety of factors including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., and futility of the amendment.” Id. (citation omitted). “In light of the presumption in favor of allowing pleading amendments, courts of appeals routinely hold that a district court’s failure to provide an adequate explanation to support its denial of leave to amend justifies reversal.” Mayeaux v. La. Health Serv. and Indent. Co., 376 F.3d 420, 426 (5th Cir.2004) (citation omitted). However, when the justification for the denial is “readily apparent,” a failure to explain “is unfortunate but not fatal to affirmance if the record reflects ample and obvious grounds for denying leave to amend.” Id. (citation and internal quotation marks omitted). Denying a motion to amend is not an abuse of discretion if allowing an amendment would be futile. Briggs v. Miss., 331 F.3d 499, 508 (5th Cir.2003). An amendment is futile if it would fail to survive a Rule 12(b)(6) motion. Id. Therefore, we review the proposed amended complaint under “the same standard of legal sufficiency as applies under Rule 12(b)(6).” Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 873 (5th Cir.2000) (citation internal and quotation marks omitted). 3.Analysis The district court afforded Marucci two opportunities to amend its complaint. These amendments did not cure what is likely incurable — Marucci’s inability to allege sufficient facts showing that the BBCOR Standard injures competition in the" }, { "docid": "137069", "title": "", "text": "court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.1982)). A district court must possess a “substantial reason” to deny a request for leave to amend. Id. (quoting Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985)). However, decisions concerning motions to amend are “entrusted to the sound discretion of the district court.... ” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (quoting Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993)). As outlined by the Supreme Court, this Circuit examines five considerations to determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment. Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir.2003) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). Absent any of these factors, the leave sought should be “freely given.” Foman, 371 U.S. at 182, 83 S.Ct. 227. The district court correctly denied Smith’s motion based on his undue delay in filing the motion to amend, as well as the proposed amendment’s undue prejudice to EMC. a. Undue delay Although “ ‘it is generally true that leave to file amendments should be freely given, amendments should be tendered no later than the time of pretrial, unless compelling reasons why this could not have been done are presented.’ ” Glass v. Petro-Tex Chem. Corp., 757 F.2d 1554, 1562 (5th Cir.1985) (quoting Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir.1971)) (citation omitted). Although Rule 15(a) does not impose a time limit “for permissive amendment, ‘at some point, time delay on the part of a plaintiff can be procedurally fatal.’ ” Whitaker v. City of Houston, 963 F.2d 831," }, { "docid": "20733797", "title": "", "text": "conform with the requirements of a valid legal cause of action. Neitzke, 490 U.S. at 329-30, 109 S.Ct. 1827. Where, however, a claim is frivolous or the “complaint alleges the plaintiffs best case,” a further factual statement from the plaintiff need not be allowed. Jones v. Greninger, 188 F.3d 322, 327 (5th Cir.1999); see Neitzke, 490 U.S. at 327-28, 109 S.Ct. 1827; Hart, 199 F.3d at 248 n. 6. Moreover, when the plaintiff declares the sufficiency of her pleadings and makes no attempt to amend her complaint in response to the defendant’s challenge pursuant to Rule 12(b)(6), dismissal is proper when the plaintiffs allegations fail to state a claim for which relief can be granted. See Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th Cir.2010); Spiller v. City of Tex. City, 130 F.3d 162, 167 (5th Cir.1997). In addition, a plaintiff should not be granted leave to amend after being afforded repeated opportunities to do so. See Torch Liquidating Trust ex rel. Bridge Assoc. L.L.C. v. Stockstill, 561 F.3d 377, 391 (5th Cir.2009) (finding that plaintiff had ample opportunity to cure noted defects through a prior amendment); United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 404 (5th Cir.2004) (noting that “pleading review is not a game where the plaintiff is permitted to file serial amendments until he finally gets it right”); United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir.2003) (holding leave to amend was properly denied where the relator had previously filed two amended complaints). Furthermore, “where a proposed amendment would be a futile act, a court does not abuse its discretion in denying leave to amend.” SB Int’l, Inc. v. Jindal, No. 3:06-CV-1174-G, 2007 WL 2410007, at *3 (N.D.Tex. Aug. 23, 2007) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). “ Whether leave to amend should be granted is entrusted to the sound discretion of the district court.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th" }, { "docid": "15496740", "title": "", "text": "is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. 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)). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conse'rvation Org. v. City of Dallas, Tex., 529 F.3d 519, 524 (5th Cir.2008). The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence; disregard all evidence favorable to the moving party that the jury is not required to believe; and give credence to the evidence favoring the nonmoving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached. Moore v. Willis Ind. Sch. Dist., 233 F.3d 871, 874 (5th Cir.2000). However, the nonmovant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). By the same token, the moving party will not meet its burden of proof based on conclusory “bald assertions of ultimate facts.” Gossett v. DuRa-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978); see also Galindo v. Precision Am. Corp., 754 F.2d 1212, 1221 (5th Cir.1985). B. Title VII — Discrimination and Retaliation Standards Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it unlawful for an employer to discharge an employee because of his “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). A plaintiff can prove intentional discrimination through either direct or circumstantial evidence. See Urbano v. Continental Airlines Inc., 138 F.3d 204, 206 (5th Cir.1998). Direct evidence is evidence which, if believed, proves the fact without inference or presumption. Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir.2005) (citing Brown v. E. Miss. Elec. Power Ass’n, 989" }, { "docid": "137068", "title": "", "text": "claim under the Massachusetts Wage Act for attorney’s fees and treble damages. The district court denied Smith’s motions. Smith timely appeals. II. STANDARD OF REVIEW This Court reviews a district court’s decision to deny leave to amend for abuse of discretion. United States ex rel. Adrian v. Regents of Univ. of Cal., 363 F.3d 398, 403 (5th Cir.2004). A district court’s choice-of-law determination is reviewed de novo. Spence v. Glock, Ges. m.b.H., 227 F.3d 308, 311 (5th Cir.2000). III. DISCUSSION A. Denial of Smith’s Motion for Leave to Amend a Fraud Claim Smith contends that the district court erred in denying his motion to amend a fraud claim both because 1) the district court lacked any valid reason to do so under Federal Rule of Civil Procedure 15(a); and 2) the parties tried the fraud claim by consent under Federal Rule of Civil Procedure 15(b), The district court did not abuse its discretion in denying Smith’s motion under either subsection of Rule 15. 1. Federal Rule of Civil Procedure 15(a) Rule 15(a) requires a trial court “to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, 283 F.3d 282, 286 (5th Cir.2002) (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1162 (5th Cir.1982)). A district court must possess a “substantial reason” to deny a request for leave to amend. Id. (quoting Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.1985)). However, decisions concerning motions to amend are “entrusted to the sound discretion of the district court.... ” Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998) (quoting Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir.1993)). As outlined by the Supreme Court, this Circuit examines five considerations to determine whether to grant a party leave to amend a complaint: 1) undue delay, 2) bad faith or dilatory motive, 3) repeated failure to cure deficiencies by previous amendments, 4) undue prejudice to the opposing party, and 5) futility of the amendment. Rosenzweig" }, { "docid": "6631371", "title": "", "text": "However, the nonmovant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” See TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). By the same token, the moving party will not meet its burden of proof based on conclusory “bald assertions of ultimate facts.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978); see also Galindo v. Precision Amer. Corp., 754 F.2d 1212, 1221 (5th Cir.1985). II. Contract Interpretation “Texas courts interpret insurance policies according to the rules of contract construction.” de Laurentis v. U.S. Auto. Ass’n, 162 S.W.3d 714, 721 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). The primary objective of the court is to ascertain the parties’ intent, as expressed in the written instrument. See Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994). “[T]he parties’ intent is governed by what they said, not by what they intended to say but did not.” Nautilus Ins. Co. v. Country Oaks Apartments, Ltd., 566 F.3d 452, 455 (5th Cir.2009) (quoting Fiess v. State Farm Lloyds, 202 S.W.3d 744, 746 (Tex.2006)) (internal quotation omitted). “If the insurance policy is worded so that it can be given a definite meaning or certain legal meaning, then the policy is not ambiguous. If the policy is not ambiguous, then the court construes the policy as a matter of law.” Brown & Brown of Tex., Inc. v. Omni Metals, Inc., — S.W.3d -, 2010 WL 1240580 (Tex. App.-Houston [1st Dist.] Mar. 25, 2010, no pet. h.) (citing Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003)) (internal citation omitted). An ambiguity exists where a policy is susceptible to more than one meaning. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Courts interpreting contractual provisions give terms their plain, ordinary, and generally accepted meanings, unless otherwise defined by the parties. “ ‘Both the insured and the insurer are likely to take conflicting views of coverage, but neither conflicting expectations nor" }, { "docid": "17417379", "title": "", "text": "for Gonzalez. The judgment of the district court is AFFIRMED. . See Foster Wheeler Energy Corp. v. AN NING JIANG MV, 383 F.3d 349, 354 (5th Cir.2004); Travelers Ins. Co. v. Liljeberg Enters., 7 F.3d 1203, 1206 (5th Cir.1993). . Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003) (quoting Fed. R. Civ. P. 56(c)). . Empire Fire & Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 681 (5th Cir.2000). . Amoco Prod. Co. v. Texas Meridian Res. Exploration, Inc., 180 F.3d 664, 669 (5th Cir.1999). . Philadelphia Am. Life Ins. Co. v. Turner, 131 S.W.3d 576, 587 (Tex.App.-Fort Worth 2004, no pet.)(quoting Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983)); see Heritage Res. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996) (holding that unambiguous contracts are enforced as written). . Nat. Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). . Frost Nat. Bank, 122 S.W.3d at 930 (\"[A] contract is ambiguous only when application of the pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning.”) (citing Universal CIT Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951)). . Int’l Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 497 (5th Cir.2002) (citing DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999)). . Nat. Union Fire Ins. Co. of Pittsburgh, Pa., 907 S.W.2d at 520; see also Resolution Trust Corp. v. Cramer, 6 F.3d 1102, 1106 (5th Cir.1993) (In the interpretation of a contract, \"our ultimate goal is to determine the intent of the parties.”). . Int’l Turbine Servs., Inc., 278 F.3d at 497 (citing Coker, 650 S.W.2d at 393); see Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex.1994) (\"When construing a contract, the court’s primary concern is to give effect to the written expression of the parties' intent. This court is bound to read all parts of a contract together to ascertain the agreement of the parties. The" }, { "docid": "16194243", "title": "", "text": "acted to conceal this fact. The MJ determined that the pleading did not support personal jurisdiction. In addition, the MJ rejected, as disingenuous, Bustos’s assertion that he had previously been unaware of Lennon’s medical condition. As the MJ pointed out, not only were Lennon’s health issues revealed to the Oregon court two years before the instant lawsuit was filed, but Bustos waited six months to file this motion from the date he alleges he first heard of Lennon’s stroke. We review the denial for abuse of discretion. Crostley v. Lamar Cnty., Tex., 717 F.3d 410, 420 (5th Cir.2013). The discretion given to the district court for this determination is broad. Id. “A district court abuses its discretion if it: (1) relies on clearly erroneous factual findings; (2) relies on erroneous conclusions of law; or (3) misapplies the law to the facts.” Priester v. JP Morgan Chase Bank, 708 F.3d 667, 672 (5th Cir.2013) (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 310 (5th Cir.2008) (en banc)). Federal Rule of Civil Procedure 15(a)(2) demands that leave to amend should be freely given “when justice so requires.” A district court, however, also has the power of managing its cases and docket and may consider factors, such as undue delay, bad faith, dilatory motive, and futility of the amendment, when deciding whether to grant leave to amend. Priester, 708 F.3d at 678. Considering the futility of the proposed amendment and the delay in submitting it, there is no abuse of discretion. AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . See SEC v. Ross, 504 F.3d 1130 (9th Cir.2007) (discussing the Alpha Telcom litigation); see also SEC v. Rubera, Nos. 12-35108, 12-35415, 535 Fed.Appx. 553, 2013 WL 3929231 (9th Cir. July 31, 2013) (mem.); SEC v. Rubera, 412 Fed.Appx. 980 (9th Cir.2011) (mem.); SEC v. Rubera, 350 F.3d 1084 (9th Cir.2003). . Bustos appears to be working at cross-purposes. He successfully appealed an order disgorging" }, { "docid": "11696785", "title": "", "text": "at *7. . Id. at *10. . It did not seek certification for an interlocutory appeal under 28 U.S.C. § 1292(b). . Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). . Cheney v. U.S. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, 380-81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (alterations in original) (citations and internal quotation marks omitted). . In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir.2008) (en banc) (quoting Cheney, 542 U.S. at 381, 124 S.Ct. 2576). . Id. at 309. . Id. at 319 (quoting In re Nat’l Presto Indus., Inc., 347 F.3d 662, 663 (7th Cir.2003)). . Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). \"To fall within Cohen's collateral order doctrine, an 'order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 171 (5th Cir.2009) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). . See Brinar v. Williamson, 245 F.3d 515, 517 (5th Cir.2001). . See Volkswagen, 545 F.3d at 319 (citing Garner v. Wolfinbarger, 433 F.2d 117, 120 (5th Cir.1970)). . 28 U.S.C. § 1292(b). . Garner, 433 F.2d at 120 (citing 28 U.S.C. § 1292(b)). Our court, sitting en banc, reaffirmed this conclusion in Volkswagen, 545 F.3d at 319. . See United States v. O’Neil, 709 F.2d 361, 371-72 (5th Cir.1983); see also Amie v. City of Jennings, 217 Fed.Appx. 338, 338-39 (5th Cir.2007) (unpublished). These decisions do not discuss’ the potential of mandamus review under such circumstances. . In re EMC Corp., 677 F.3d 1351, 1354-55 (Fed.Cir.2012) . Volkswagen, 545 F.3d at 311. . Id. at 310. . Atl. Marine Const. Co., Inc. v. U.S. Dist. Ct. W.D. Tex., - U.S. -, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). . Id. at 579-80. . 28 U.S.C. § 1404(a). . Van" }, { "docid": "6549229", "title": "", "text": "jurists could debate the district court’s disposition of his motion to reconsider judgment. We DENY the request for a stay of execution. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir R. 47.5.4. . Buck v. Thaler, 345 Fed.Appx. 923 (5th Cir.2009). . Buck v. Thaler, No. 72, 810 (Tex.Crim.App. Apr. 28, 1999). . Buck, 345 Fed.Appx. 923. . Id. . 545 U.S. 524, 530-31, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). .See id. at 530, 125 S.Ct. 2641. . 28 U.S.C. § 2244(b)(3)(A). . Id. § 2244(b)(2). . Id. § 2244(b)(2)(B)(i). . Id. § 2244(b)(2)(B)(ii) . 28 U.S.C. § 2244(a)-(b)(2). . Id. . Gonzalez, 545 U.S. at 532, 125 S.Ct. 2641. . 28 U.S.C. § 2253(c)(1). . 302 F.3d 491, 492 (5th Cir.2002). . Ochoa Canales v. Quarterman, 507 F.3d 884, 888 (5th Cir.2007); see also Williams v. Quarterman, 293 Fed.Appx. 298, 315 (5th Cir.2008). . Jackson v. Thaler, 348 Fed.Appx. 29, 31-32, 34-35 (5th Cir.2009). . 28 U.S.C. § 2253(c)(2). . Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). . Id. at 336, 123 S.Ct. 1029. . Id. at 360, 123 S.Ct. 1029. . Fed.R.Civ.P. 60(b)(6). . Fed.R.Civ.P. 60(c)(1). . See In re Osborne, 379 F.3d 277, 283 (5th Cir.2004) (\"Motions under Rule 60(b) must be made ‘within a reasonable time,' unless good cause can be shown for the delay.” (citing Pryor v. U.S. Postal Serv., 769 F.2d 281, 287-88 (5th Cir.1985))). . Balentine v. Thaler, 626 F.3d 842, 846 (5th Cir.2010), cert. denied, - U.S. -, 131 S.Ct. 2992, 180 L.Ed.2d 824 (2011). . Lindy Investments III v. Shakertown 1992 Inc., 360 Fed.Appx. 510, 512 (5th Cir.2010); see also Matter of Al Copeland Enterprises, Inc., 153 F.3d 268, 271-72 (5th Cir.1998). . See Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005) (explaining that \"our cases have required a mov-ant seeking relief under Rule 60(b)(6) to show 'extraordinary circumstances' justifying the re-opening of a" }, { "docid": "4955463", "title": "", "text": "from its violation, see Tex. Const. art. XVI, § 50(a)(6)(Q)(x), and the broad reach of the section, see, e.g., James W. Paulsen, Acquiring Separate Property on Credit: A Review and Proposed Revision of Texas Marital Property Doctrine, 37 St. Mary’s L.J. 675, 679-80 & nn. 12-13 (2006) (reviewing government estimates of scope of home equity lending following the section 50 amendment and concluding that as many as fifteen percent of Texas homeowners have loans governed by section 50(a)). In the past, we have not hesitated to certify questions concerning the proper interpretation of this provision. For example, in 1999, in Stringer v. Cen dant Mortgage Corp., 199 F.3d 190, 191-92 (5th Cir.1999), we certified the question of whether, where the notice provision of the amendment conflicted with the substantive rights provision on the question, a lender could permissibly require a borrower to pay off third-party debt with the proceeds of the loan. A few months later, the Texas Supreme Court explained that the substantive provisions control over the notice provisions. Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353, 357-58 (Tex.2000). In 2001, in Doody v. Ameriquest Mortgage Co., 242 F.3d 286, 290 (5th Cir.2001), we certified the question of whether a lender may bring itself into compliance with the three percent fee cap of section 50(a)(6)(E) by subsequently refunding the excess portion of the fee to the borrower. Later that year, the Texas Supreme Court answered that a timely refund cures the violation. Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 345-47 (Tex.2001). Most recently, in 2005, in Norris v. Thomas (In re Norris), 413 F.3d 526, 530 (5th Cir.2005), we certified the question of whether a houseboat is a homestead under sections 50 and 51 of article XVI. The Texas Supreme Court responded that a boat could not be a homestead. Norris v. Thomas, 215 S.W.3d 851, 852 (Tex.2007). Indeed, certification from this court has generated much of the Texas Supreme Court’s jurisprudence concerning section 50. The majority’s holding on this issue in this case has the potential for a much greater impact than those issues presented in Stringer," }, { "docid": "22812772", "title": "", "text": "v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. 1075. . Id. (citations and internal quotation marks omitted). . Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). . See Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. . Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.2003). . Morris, 144 F.3d at 380. . Little, 37 F.3d at 1075 (emphasis omitted). . Id. (internal quotation marks and citation omitted). . IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). . Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). . Rodriguez v. Sabatino, 120 F.3d 589, 591-92 (5th Cir.1997). In Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002), the Texas Supreme Court found that [t]he question of legal duty is a multifaceted issue requiring us to balance a number of factors such as the risk and the foreseeability of injury, the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case. . See Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex.App.-Dallas 2004, pet. denied). . See Leitch v. Hornsby, 935 S.W.2d 114, 118-19 (Tex.1996). . See Ford v. Cimarron Ins. Co., 230 F.3d 828, 830 (5th Cir.2000) (“Duty is the threshold question of any negligence case. In Texas, moreover, whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question.” (citation omitted)); Reeder v. Daniel, 61 S.W.3d 359, 364 (Tex.2001) (“It is fundamental ... that a legal duty must exist before a defendant is held liable for negligence.”). . Houston Lighting & Power Co. v. Brooks, 161 Tex. 32, 336 S.W.2d 603, 606 (1960); see also Alm v. Aluminum Co. of Am., 717 S.W.2d" }, { "docid": "20259469", "title": "", "text": "148, 161 (Tex.App.—Dallas 2007, pet. denied) (citing Chevalier v. Lane's Inc., 147 Tex. 106, 213 S.W.2d 530 (1948)). . Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex.App.—Texarkana 1989, no writ). . Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.—Dallas 2002, pet. denied). . See id. at 441. . Transcon. Realty Investors, Inc. v. John T. Lupton Trust, 286 S.W.3d 635, 648 (Tex.App.—Dallas 2009, no pet.). . Breezevale Ltd., 82 S.W.3d at 438. . See Loose v. Offshore Navigation, Inc., 670 F.2d 493, 498 (5th Cir.1982) (noting that an admission in a pretrial order “is usually a waiver of the assertion of a contrary position”). . Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 769 (Tex.App.—El Paso 2004, no pet.); see, e.g., Watson v. Nortex Wholesale Nursery, Inc., 830 S.W.2d 747, 751 (Tex.App.—Tyler 1992, writ denied); Crowder v. Tri-C Res., Inc., 821 S.W.2d 393, 397 (Tex.App.—Houston [1st Dist.] 1991, no writ). . Transcon. Realty Investors, 286 S.W.3d at 648 (citing Fretz Constr. Co. v. So. Nat’l Bank of Houston, 626 S.W.2d 478, 483 (Tex.1981)); see also Wheeler v. White, 398 S.W.2d 93, 97 (Tex.1965). . Wheeler, 398 S.W.2d at 97. . Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). . Vortt Exploration Co., Inc. v. Chevron USA, Inc., 787 S.W.2d 942, 944 (Tex.1990). . Id. . Johnston v. Kruse, 261 S.W.3d 895, 902 (Tex.App.—Dallas 2008, no pet.). . Heldenfels, 832 S.W.2d at 41. . Argyle Indep. Sch. Dist. v. Wolf, 234 S.W.3d 229, 246 (Tex.App.—Fort Worth 2007, no pet.) (internal quotation marks and citation omitted). . Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338-39 (5th Cir.2008). . ABC Arbitrage v. Tchuruk, 291 F.3d 336, 350 (5th Cir.2002) (internal quotation marks and citation omitted). . Club Retro, LLC v. Hilton, 568 F.3d 181, 215 n. 34 (5th Cir.2009). . Fahim v. Marriott Hotel Servs., Inc., 551 F.3d 344, 348 (5th Cir.2008). . Fed. R. Civ. P. 16(b). . See Adrian v. Regents of Univ. of Calif., 363 F.3d 398, 404 (5th Cir.2004) (concluding that the district court did not abuse its discretion in" }, { "docid": "22812771", "title": "", "text": "abrogates the rule announced in the Jetco-Alcom-Alcom line of cases). Cases decided after FirsTier, however, have held that a notice of appeal is proper if taken from an order that \"would have been appealable if immediately followed by the entry of judgment pursuant to Federal Rule of Civil Procedure 54(b).” Barrett v. Atl. Richfield Co., 95 F.3d 375, 379 (5th Cir.1996); see also Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631 (5th Cir.2002). Here, because the district court’s order granting Swift’s motion for summary judgment \"would have been appealable if the district court had certified it pursuant to Rule 54(b), and because the district court did subsequently (and prior to oral argument herein) dispose of all remaining parties and claims,\" we have jurisdiction over this appeal. Young, 294 F.3d at 634 n. 2. . Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.2004). . Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir.2004) (citing Fed.R.Civ.P. 56(c)). . Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. 1075. . Id. (citations and internal quotation marks omitted). . Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). . See Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. . Armstrong v. Am. Home Shield Corp., 333 F.3d 566, 568 (5th Cir.2003). . Morris, 144 F.3d at 380. . Little, 37 F.3d at 1075 (emphasis omitted). . Id. (internal quotation marks and citation omitted). . IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). . Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex.1999). . Rodriguez v. Sabatino, 120 F.3d 589, 591-92 (5th Cir.1997). In Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 33 (Tex.2002), the Texas Supreme Court found that [t]he question of legal duty is a" }, { "docid": "8060031", "title": "", "text": "court relied on 14 C.F.R. § 254.4 to conclude that an airline could not contract to eliminate its liability under the federal common law for the loss of-a passenger’s jewelry. III. In his cross-appeal, Casas argues that his state law claims are not pre-empt-ed by 49 U.S.C. § 41713(b)(1), which (with exceptions not relevant to this case) preempts the states from enforcing any “law, regulation, or other provision having the force and effect of law' related to a price, route, or service of an air carrier.” Lyn-Lea Travel Corp. v. American Airlines, Inc., 283 F.3d 282, 286 & n. 4 (5th Cir.2002). In Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.1995) (en banc), this court read the statutory predecessor of § 41713(b)(1) to include “items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.” 44 F.3d at 336 (citation omitted). Current § 41713(b)(1) is identical in substance to the provision at issue in Hodges. See Lyn-Lea, 283 F.3d at 286 n. 4. Hodges requires the conclusion that Casas’s claims under state law for the loss of his camera are pre-empted. See Lyn-Lea, 283 F.3d at 289 n. 11 (quoting Hodges). Cf. Sam L. Majors Jewelers, 117 F.3d at 931 (holding that ADA pre-empted claim under Texas Deceptive Trade Practice-Consumer Protection Act arising from loss of shipped goods). Casas does not argue otherwise. Instead, he asks this court to abandon Hodges. A panel of this court cannot overrule a decision made by another panel, let alone an en banc decision of this court. United States v. Garcia Abrego, 141 F.3d 142, 151 n. 1 (5th Cir.1998). IV. That none of Casas’s claims survives appellate review also dooms the class certification. The court certified a class of “similarly situated” American Airlines passengers under Fed. R. Civ. Proc. 23(b)(2) and (b)(3) on the assumption that the passengers shared a common claim, an implied cause of action under 14 C.F.R. 254.4 to invalidate American’s liability exclusion and recover for lost or damaged baggage up to $1,250 per passenger. As this is the" }, { "docid": "4955464", "title": "", "text": "23 S.W.3d 353, 357-58 (Tex.2000). In 2001, in Doody v. Ameriquest Mortgage Co., 242 F.3d 286, 290 (5th Cir.2001), we certified the question of whether a lender may bring itself into compliance with the three percent fee cap of section 50(a)(6)(E) by subsequently refunding the excess portion of the fee to the borrower. Later that year, the Texas Supreme Court answered that a timely refund cures the violation. Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 345-47 (Tex.2001). Most recently, in 2005, in Norris v. Thomas (In re Norris), 413 F.3d 526, 530 (5th Cir.2005), we certified the question of whether a houseboat is a homestead under sections 50 and 51 of article XVI. The Texas Supreme Court responded that a boat could not be a homestead. Norris v. Thomas, 215 S.W.3d 851, 852 (Tex.2007). Indeed, certification from this court has generated much of the Texas Supreme Court’s jurisprudence concerning section 50. The majority’s holding on this issue in this case has the potential for a much greater impact than those issues presented in Stringer, Doody, or Norris. In contrast to those cases, this case effectively adjudicates the validity of thousands of adjustable-rate home equity loans originated between at least the 1997 enactment of the amendment and the 2004 effective date of the regulations that now provide a safe harbor. Certification is, of course, discretionary both by our court in certifying and the Texas Supreme Court in accepting the question. Patterson v. Mobil Oil Corp., 335 F.3d 476, 487 (5th Cir.2003); Tex. R.App. P. 58.1. Undoubtedly, construction of a state constitution in a case of first impression is the type of matter appropriate for certification. In such an area, we have generally declined to exercise that discretion only where the controlling state law issues presented by the case are, though “important and complex, ... sufficiently clear.” Id. That is patently not the case here. Rather, we are faced with two provisions of the Texas Constitution that four Texas administrative agencies acknowledged are “ambiguous” when read together. See Regulatory Commentary 8. The majority resolves this ambiguity by relying upon prior non-binding" }, { "docid": "9803350", "title": "", "text": "Cir.1974). “Where upon a construction of the contract it is determined that the agent has substituted his own responsibility for that of his principal, or has pledged his own responsibility in addition to that of his principal, he will be bound accordingly. His liability is not predicated upon his agency, but upon his contract obligations.” Vincent Murphy Chevrolet Co. v. Auto Auction, Inc., 413 S.W.2d 474, 477-478 (Tex.Civ.App.1967) (quoting American Nat’l Bank v. American Loan & Mortgage Co., 228 S.W. 169 (Tex.Comm’n App.1921), and citing numerous Texas Court of Civil Appeals cases). See Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737, 738 (Tex.App.1985); Richards Group, Inc. v. Stone Container Corp., 1997 WL 78916 *3 (Tex. App.1997)(not designated for publication); 3 Tex. Jur.3d § 186. B. The Agreement Contract interpretation, including the question of whether the contract is ambiguous, is a legal question, subject to de novo review. Quorum Health Resources, 308 F.3d at 458; Fina, Inc. v. ARCO, 200 F.3d 266, 268 (5th Cir.2000). In construing the Agreement, we are guided by general principles of contract interpretation under Texas law. The court’s primary concern is to give effect to the written expression of the parties’ intent. General Acc. Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d 651, 653 (5th Cir.2002); Nat’l Union Fire Ins. Co. v. Care Flight Air Ambulance Serv., Inc., 18 F.3d 323, 328-29 (5th Cir.1994). In doing so, the court should read all parts of the contract together to ascertain the agreement of the parties, ensuring that each provision of the contract is given effect and none are rendered meaningless. Int’l Turbine Serv., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 497 (5th Cir.2002); Petula Associates, Ltd. v. Dolco Packaging Corp., 240 F.3d 499, 502 (5th Cir.2001); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). “Texas law requires us to ‘peruse the complete document to understand, harmonize, and effectuate all its provisions.’ ” Kona Tech. Corp. v. S. Pac. Trans. Co., 225 F.3d 595, 610 (5th Cir.2000). 1. Do the terms of the Agreement obligate ISP to reimburse Instone for purchases it made on behalf" }, { "docid": "4473429", "title": "", "text": "an exception to the final judgment rule.”). . Thornton v. Gen. Motors Corp., 136 F.3d 450, 453 (5th Cir. 1998). . Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (internal quotation marks omitted). . Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). . Id. . Id. . Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). . Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (quoting Femandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278 (5th Cir. 1993)). . Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 251-52 (5th Cir. 2005) (second alteration in original) (quoting Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). . Id. at 252. . Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995). . Id. at 1433. . Id. . Id. at 1433-34 (emphasis added). . Id. at 1433 (quoting Fed. R. Civ. P. 8(e)(1)). . Id, at 1434. Stated differently, even though the complaint and any reply are subject to distinct standards, neither standard is altered when a defendant files a responsive pleading asserting a qualified immunity defense. . See Cox v. Kaelin, 577 Fed.Appx. 306, 312-13 (5th Cir. 2014) (unpublished) (“Regarding [the defendant’s] claimed defense of qualified immunity, he argues that a heightened plead-tag standard applies when the defense of qualified immunity is asserted, relying on Schultea v. Wood. [His] argument, however, misreads this Court’s opinion in that case.’’ (citation omitted)). . Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007) (citations omitted) (internal quotation marks omitted). . In any event, \"[a]dverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands.” Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (quoting Pierce v. Tex. Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994)). The action here qualifies because Valdez blocked Anderson's being hired. . Anderson also alleges: \"On May 9, 2014," }, { "docid": "20733798", "title": "", "text": "(5th Cir.2009) (finding that plaintiff had ample opportunity to cure noted defects through a prior amendment); United States ex rel. Adrian v. Regents of the Univ. of Cal., 363 F.3d 398, 404 (5th Cir.2004) (noting that “pleading review is not a game where the plaintiff is permitted to file serial amendments until he finally gets it right”); United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 387 (5th Cir.2003) (holding leave to amend was properly denied where the relator had previously filed two amended complaints). Furthermore, “where a proposed amendment would be a futile act, a court does not abuse its discretion in denying leave to amend.” SB Int’l, Inc. v. Jindal, No. 3:06-CV-1174-G, 2007 WL 2410007, at *3 (N.D.Tex. Aug. 23, 2007) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). “ Whether leave to amend should be granted is entrusted to the sound discretion of the district court.’ ” Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282, 286 (5th Cir.), cert. denied, 537 U.S. 1044, 123 S.Ct. 659, 154 L.Ed.2d 516 (2002) (quoting Quintanilla v. Tex. Television, Inc., 139 F.3d 494, 499 (5th Cir.1998)). “Federal Rule of Civil Procedure 15(a) requires the trial court to grant leave to amend ‘freely,’ and the language of this rule ‘evinces a bias in favor of granting leave to amend.’ ” Id. (quoting Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1162 (5th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983)); Ackerson v. Bean Dredging LLC', 589 F.3d 196, 208 (5th Cir.2009) (“[T]here is a strong presumption in favor of granting leave to amend.... ”). A district court may, however, refuse leave to amend if the complaint as amended would be subject to dismissal. Ackerson, 589 F.3d at 208; see Yee v. Baldwin-Price, 325 Fed.Appx. 375, 380 (5th Cir.2009) (“Leave to amend may be denied on the basis of futility.”). Here, the court finds that because an amendment could cure several defects, Gallentine should be granted leave to amend." }, { "docid": "3741546", "title": "", "text": "the new matter prior to the trial court’s merits ruling.’” Caldwell does not attempt to explain why he could not have reasonably raised the new matter prior to the district court’s decision. Moreover, at the summary judgment hearing, Caldwell’s counsel repeatedly insisted that the case was not a Title VII case. For these reasons, we hold that the district court did not abuse its discretion. * * * For the foregoing reasons, we AFFIRM the judgment of the district court. Pursuant to 5th Cíe. R. 47,5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . Haverda v. Hays County, 723 F.3d 586, 591 (5th Cir. 2013). . Id. (quoting Fed. R. Civ. P. 56(a)). . Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016), cert. denied, — U.S. —, 137 S.Ct. 815, 196 L.Ed.2d 600 (2017). . Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999). . Kline v. N. Tex. State Univ., 782 F.2d 1229, 1234 (5th Cir. 1986). . Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008). . Id. (quoting Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000)). . Ferret v. Nationwide Mut. Ins. Co., 770 F.3d 336, 338 (5th Cir. 2014). . Haley v. All. Compressor LLC, 391 F.3d 644, 652 (5th Cir. 2004) (citing Bozé v. Branstetter, 912 F.2d 801, 805 (5th Cir. 1990) (per curiam)). . Keelan v. Majesco Software, Inc., 407 F.3d 332, 343 (5th Cir. 2005) (citing Haley, 391 F.3d at 652). . See Haley, 391 F.3d at 652 (quoting McKethan v. Tex. Farm Bureau, 996 F.2d 734, 741 (5th Cir. 1993)). . Perret, 770 F.3d at 338. . Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 444 (5th Cir. 2011) (quoting Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)). . Id. (quoting Benningfield, 157 F,3d at 378). . Stover v. Hattiesburg Pub. Sch. Dist., 549 F.3d 985, 991 (5th Cir. 2008) (quoting Aryain v. Wal-Mart" } ]

[ { "docid": "10546742", "title": "", "text": "found in his wallet on the ground that it was seized pursuant to an unlawful arrest. Specifically, he contends that customs agents lacked probable cause to arrest him. We reject that contention for two reasons. First, the record clearly demonstrates the existence of probable cause to arrest Uricoechea. As we said in United States v. Figueroa, 818 F.2d 1020 (1st Cir.1987), the test is “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Id. at 1023 (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Probable cause must be evaluated in light of the totality of circumstances. Moreover, in order to demonstrate the existence of probable cause, the government need not present the quantum of proof necessary to convict. United States v. Maguire, 918 F.2d 254, 258 (1st Cir.1990) (citing Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)); United States v. Jorge, 865 F.2d 6, 9 (1st Cir.1989)). If an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest. United States v. Leal, 831 F.2d 7, 10 (1st Cir.1987). The permissible purposes of such a search include preservation of evidence, Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), and seizure of destructible contraband, United States v. Bautista, 731 F.2d 97, 99 (1st Cir.1984). In this case, the agents clearly had probable cause to arrest Uricoechea. The field test of the white powder in the garment bag bearing his claim tag indicated the presence of cocaine. Furthermore, Uricoe-chea never denied ownership of the bag. Consequently, the agents had ample justification for searching Uricoechea, examining his wallet and seizing the contraband concealed in it. Even without a finding of probable cause, the search of Uricoechea’s person would be lawful. As already noted, probable cause is not required to" } ]

[ { "docid": "9540716", "title": "", "text": "violations of his sequestration order, and the denial of defendants’ motion for a mistrial based on the jury’s view of defendants Termini and Ardizzone in handcuffs while in the custody of marshals. II. Ayres argues that the trial court should have suppressed his statements in which he admitted involvement in the smuggling operation. At trial, the court did order that testimony about incriminating statements made by Ayres at the breachway be stricken because the comments were made while Ayres was handcuffed and a police officer stood over him with a rifle. The judge left it to the jury to decide whether the subsequent statements made by Ayres at the police station were voluntary. Ayres contends that these statements also should have been excluded as a product of an arrest made without probable cause. Ayres further argues that his statements at the police station were the unattenuated taint of his prior involuntary statements at the breachway. We turn first to Ayres’s contention that he was arrested without probable cause. A warrantless arrest is constitutionally valid if “at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Whether there is probable cause for a warrantless arrest is determined under an objective standard, not by inquiry into the officers’ presumed motives. United States v. McCambridge, 551 F.2d 865, 870 (1st Cir. 1977). To sustain a warrantless arrest, the Government is not required to show that the arresting officer had “the quantum of proof necessary to convict.” United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). Probable cause “is a practical, nontechnical conception” offering an acceptable compromise between competing societal interests in protecting citizens on the one hand from abusive interferences with" }, { "docid": "23449615", "title": "", "text": "no competent evidence that Domina or McDonald’s, as distinguished from Leporati, sought to exclude her on the basis of her race. See supra Section II.A.1. Thus, on the record evidence, Domina acted within her lawful authority — as “the person [having] lawful control of said premises,” Mass.Gen.Laws Ann. ch. 266, § 120 — in revoking Alexis’s implied license to utilize McDonald’s dining facilities. ii. Probable Cause Probable cause exists if “the facts and circumstances within [a police officer’s] knowledge and of which [the officer] had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution” to believe that a crime has been committed or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); United States v. Drake, 673 F.2d 15, 17 (1st Cir.1982). Leporati effected this arrest based on the eyewitness report from Domina that Alexis had created an “unwarranted disturbance” and refused to leave the premises, and on the representation by Sherry Topham that there had been an unspecified “problem” with Alexis in the past. An objectively reasonable police officer so informed by the person in charge of the business premises, see swpra note 2, fairly could conclude that the implied license extended to Alexis had been revoked and that there was probable cause to believe that her continued presence constituted a criminal trespass. See Mass. Gen.Laws Ann. ch. 266, § 120 (“A person ... found committing such trespass may be arrested by a ... police officer_”); see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (“The constitutionality of a warrantless arrest ‘depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it— whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ”) (quoting Beck, 379 U.S. at 91, 85 S.Ct. at 225). Accordingly, we discern no error in the district court ruling that appellants" }, { "docid": "23679311", "title": "", "text": "suggestion that he should be allowed to raise as a defense a pretextual basis for the arrest which he expressly disavows. C.f. Wagenmann, 829 F.2d at 206 (jury entitled to reject pretextual bases for arrest). Even, however, if the snowball incident had been the basis for the arrest, a directed verdict on the common law claim would not have been justified. The evidence showed a dispute over whether all of the requirements for a lawful warrantless arrest, other than probable cause, were met in this case. Although the snowball throwing might constitute a breach of the peace if it were recklessly done, there is a dispute over whether any officer actually witnessed the throw. In addition, on plaintiffs version of the facts, a considerable time elapsed between the throwing of the snowball and the arrest. It was therefore disputed whether the alleged offense was continuing or whether the act and arrest could be said to form “one transaction.” The jury, therefore, could have found that, under Massachusetts law, the officers could not legally arrest Santiago for the snowball incident, regardless of the presence of probable cause. This leaves us with the original and only asserted basis for the arrest — that Santiago had pushed or struck an officer and had made loud and obscene noises. A determination of probable cause rests on “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Here, the evidence would have permitted a jury to find that the officers lacked probable cause to arrest Santiago for allegedly abusive conduct. Santiago and his witnesses testified that he never pushed or struck Rivera nor used loud and obscene language. The jurors could have believed plaintiff’s version of what occurred, and as a result could have found" }, { "docid": "17871666", "title": "", "text": "Here, that assessment turns on the officers’ determination of probable cause. In cases applying this [qualified immunity] standard to police arrests in this circuit, an arrest challenged as unsupported by probable cause is deemed “ ‘objectively reasonable’ ” unless “there clearly was no probable cause at the time the arrest was made.” Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir.1993) (quoting Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985)). In the instant case, the evidence giving rise to probable cause to believe Vargas drove under the influence of alcohol was far from substantial — and yet we cannot say that there clearly was no probable cause from the point of view of reasonable persons standing in these police officers’ shoes. See Farrell, 765 F.2d at 5 (“Despite a finding of no probable cause at a later hearing, a police officer should not be found liable under § 1983 for a warrantless arrest because the presence of probable cause was merely questionable at the time of arrest.”); Briggs v. Malley, 748 F.2d 715, 719 (1st Cir.1984). The Fourth Amendment requirement of probable cause to perform a warrantless arrest turns on “whether at that moment the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” Beck, 379 U.S. at 91, 85 S.Ct. at 225; see also United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck). Here, the following undisputed facts could, at the very least, have led reasonable police officers to believe that they were obeying the probable cause requirement in proceeding to arrest Vargas for driving under the influence of alcohol. The officers were informed by Delgado, whether correctly or incorrectly, that Vargas was the driver of the track. Delgado also informed the defendants that Vargas and the other men smelled of alcohol and had glassy eyes. Reasonable police officers coidd further believe that Vargas’ actions suggested insolence, and were thus the kind of actions that correlate with drunkenness. It is" }, { "docid": "14281135", "title": "", "text": "record does not show either directly or indirectly that either Massachusetts or Maine was mentioned on the tapes of the recorded conversations. And the agents testifying at the hearing stated they had not seen any drugs or money change hands. IV. The Defendant’s Argument The defendant asserts that there was no probable cause for the police to arrest him, search his motor vehicle, and seize therefrom $10,981 and a cellular telephone. A warrantless arrest, like the one at issue here, must be based on probable cause. See United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976); United States v. Link, 238 F.3d 106, 109 (1st Cir.2001); United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994). Generally, if an arrest is not based on probable cause, then statements and evidence obtained as a result of the arrest are inadmissible. See Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Jorge, 865 F.2d 6, 9-10 (1st Cir.1989). In United States v. Santana, 895 F.2d 850, 852 (1st Cir.1990), a case very similar to this one, probable cause was defined as follows: Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’ ” Id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st" }, { "docid": "3214797", "title": "", "text": "favor.” LeBlanc v. Great American Ins. Co., 6 F.3d 836, 841 (1st Cir.1993). A. Nuon’s Motion for Summary Judgment Counts I and III, Probable Cause for the Arrest Under the Fourth Amendment to the United States Constitution, the right to be free from unreasonable searches gives rise to a requirement that an arrest be supported by probable cause. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Probable cause exists where “the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck, 379 U.S. at 91, 85 S.Ct. 223). The exact degree of certainty required to establish probable cause is difficult to quantify, but it falls somewhere between bare suspicion and what would be needed to justify conviction. Burke v. Town Of Walpole, 405 F.3d 66, 80 (1st Cir.2005) (citing Valente v. Wallace, 332 F.3d 30, 32 (1st Cir.2003)). Probable cause is evaluated as of the moment an arrest is made, based on the facts and circumstances within the arresting officer’s knowledge and of which he had reasonably trustworthy information. Beck, 379 U.S. at 91, 85 S.Ct. 223. The probable cause analysis entails “ ‘an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,’ and not of the officer’s actual state of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S. 463, 470-471, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)). Where “there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them,” the existence of probable cause for an arrest is an issue for the jury; on the other hand, where the historical facts are established or undisputed, the issue becomes a mixed question of law and fact" }, { "docid": "5358033", "title": "", "text": "In response to officer González-Serrano's inquiry, he answered that he was not from San Sebas-tián, at which time he was placed under arrest. This person was later identified as Logrofio-Cruz. The other, later identified as appellant Tormes-Ortiz, was using a public telephone a few feet away from Lo-grofio-Cruz. As the officer was arresting Logrofio-Cruz, the latter repeatedly glanced toward Tormes-Ortiz. Observing this, Officer González-Serrano ordered the arrest of Tormes-Ortiz. Several documents and a pager were seized from Tormes-Ortiz' person. Appellant Tormes-Ortiz argues that the arresting officer lacked probable cause to carry out his arrest without a warrant. Therefore, appellant maintains that any evidence obtained as a result of his arrest should have been suppressed. The constitutionality of a warrantless arrest “depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Probable cause is determined under an objective standard, United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987), and the government need not show “the quantum of proof necessary to convict.” Id. Moreover, probability, and not a prima facie showing of criminal activity, is the standard of probable cause. Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). We must also keep in mind that probability should not be reduced to a neat set of rules, but assessed according to the particular factual context. Figueroa, 818 F.2d at 1024. Within this legal framework we must now examine the circumstances surrounding Tormes-Ortiz’ arrest in June, 1988. We note again that the findings of the district court are binding unless clearly erroneous. United States v. Wiseman, 814 F.2d 826, 828 (1st Cir.1987). Here the arresting officers undertook a lengthy and weary search for the drug offenders who had fired at them earlier in" }, { "docid": "1155578", "title": "", "text": "Figueroa asserted), the apprehension was nevertheless lawful inasmuch as it was bottomed on a surfeit of probable cause.' The government strives mightily on appeal, as it did below, to cast Figueroa’s detention in the mold of an investigatory “stop” within the meaning of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The matter is not free from doubt. Compare Dunaway v. New York, 442 U.S. 200, 206-26, 99 S.Ct. 2248, 2253-64, 60 L.Ed.2d 824 (1979) with United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 1573-76, 84 L.Ed.2d 605 (1985). See generally United States v. Quinn, 815 F.2d 153 (1st Cir.1987). Yet, we need not troll in such windswept seas. Assuming (albeit without deciding) that the appellant’s detainer was in the nature of an arrest, as he argues, the district court’s finding that the probable cause requirement of the federal Constitution was satisfied seems unimpugnable. We begin by noting that the constitutionality of a warrantless arrest “depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). Accord United States v. Ayres, 725 F.2d 806, 809 (1st Cir.), cert. denied, 469 U.S. 817, 105 S.Ct. 84, 83 L.Ed.2d 31 (1984). Probable cause is determined under an objective standard, United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977), and the government need not show “the quantum of proof necessary to convict.” United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979). Probability is the touchstone: “[probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983) (quoting Spinelli v. United" }, { "docid": "23679312", "title": "", "text": "for the snowball incident, regardless of the presence of probable cause. This leaves us with the original and only asserted basis for the arrest — that Santiago had pushed or struck an officer and had made loud and obscene noises. A determination of probable cause rests on “whether, at the moment the arrest was made, ... the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Here, the evidence would have permitted a jury to find that the officers lacked probable cause to arrest Santiago for allegedly abusive conduct. Santiago and his witnesses testified that he never pushed or struck Rivera nor used loud and obscene language. The jurors could have believed plaintiff’s version of what occurred, and as a result could have found no probable cause for the arrest. We therefore hold that the jury could have found a violation of Santiago’s Fourth Amendment right to be free from unreasonable seizure of the person and his common law right to be free from false arrest and imprisonment. 2. Immunity Mackler argues that the district court nevertheless properly granted him a directed verdict on the false arrest claims because he is entitled to immunity under both state and federal law. a. State Immunity Mackler asserts that he is immune from suit for the state tort of false arrest under Mass.Gen.L. ch. 263, § 3. That statute provides: No action, except for use of excessive force, shall lie against any officer other than the arresting officer, by reason of the fact that, in good faith and in the performance of his duties, he participates in the arrest or imprisonment of any person believed to be guilty of a crime unless it can be shown that such officer in the performance of his duties took an active part in the arrest" }, { "docid": "7204625", "title": "", "text": "search, provided that they have probable cause to do so. Consequently, the issue before us reduces to whether the facts and circumstances within the agents’ knowledge at the time of Winchenbach’s arrest were sufficient to yield probable cause. Like the district court, see Winchenbach, 31 F.Supp.2d at 165, we conclude that they were. Prior opinions guide this inquiry. We begin with bedrock: probable cause to effect an arrest does not require the same level of certitude or quantum of proof that is necessary to convict. See United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987). Instead, probable cause exists when, “at th[e] moment [the arrest is made,] the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). For this purpose, the “fellow officer” rule applies, so that as a general matter (subject to exceptions not pertinent here), the focus is upon the collective knowledge possessed by, and the aggregate information available to, all the officers involved in the investigation. See Meade, 110 F.3d at 193-94. We need not dwell on generalities. In the last analysis, probable cause requires practical, context-specific determinations, made case by case, that give due weight to the totality of the circumstances and the trial court’s superior coign of vantage. See Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988). If the circumstances supportably found “warrant the officer’s reasonable belief that the action taken is appropriate, the arrest is justified.” Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir.1997). Thus, the dispositive question here is whether the officers’ collective knowledge at the moment of the arrest justified a prudent person in believing that the appellant had distributed cocaine. Having reviewed the stipulated record with care, we find the answer to this question readily apparent. The MDEA had received several tips that the" }, { "docid": "14281136", "title": "", "text": "(1963); United States v. Jorge, 865 F.2d 6, 9-10 (1st Cir.1989). In United States v. Santana, 895 F.2d 850, 852 (1st Cir.1990), a case very similar to this one, probable cause was defined as follows: Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’ ” Id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)). We have no trouble deciding that there was probable cause here. In fact it overflowed. Officer Prough’s probable cause determination was supported by three pillars of evidence. The first was the Cl’s statements to Officer Deetjen that the purpose of Spaulding’s trip to Massachusetts was to purchase cocaine. The reliability of an informant is critical to our determination of whether that informant’s statements can support a police officer’s finding of probable cause. See Link, 238 F.3d at 109-10; United States v. Khounsavanh, 113 F.3d 279, 284 (1st Cir.1997) (“an informant’s ‘veracity,’ ‘reliability’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report.” (quoting Gates, 462 U.S. at 230, 103 S.Ct. 2317)). There is no doubt that Officer Deetjen had grounds for believing that the Cl in this case was reliable. In Officer Deetjen’s estimation this informant was the- best he had ever worked with: He was always on time, as directed, showed up where he was supposed to be as directed, was self-motivating as far as contacting people and" }, { "docid": "12085813", "title": "", "text": "discussion of these claims. ii. Appellant claims that the district court erred in denying his motion to suppress the white bag containing the cocaine and the statements he made to Middletown Police Officers following his arrest. The evidence was improperly obtained, he claims, because the officers lacked probable cause to stop the Denaj car and to arrest appellant. Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). In other words, we consider the totality of the circumstances in evaluating whether the government demonstrated a sufficient “ ‘[probability ... of criminal activity,’” id. at 1023-24 (quoting Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983)). “Probability is the touchstone.... [T]he government need not show ‘the quantum of proof necessary to convict.’ ” Id. at 1023 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)). We review the district court’s finding of probable cause under the clearly erroneous standard. Id. at 1024. Our conclusion that the police officers lawfully stopped the Denaj vehicle is based primarily on the nature of the case, in which police officers were closely involved in the development of the crime. Denaj had volunteered to corral another criminal with the hope that he would receive favorable treatment in his own drug case, and the officers therefore had reason to believe that he would not lead them on a wild goose chase — particularly since Denaj had planned an elaborate scenario in which he would be involved to the end. If at any point it seemed the transaction would not take place as Denaj had promised, it would have been in his interest to tell the officers. Instead, he traveled along the prearranged route to Middletown, indicating that cocaine was in the car." }, { "docid": "12066720", "title": "", "text": "defense, it is compelled to convict the other defendant.” United States v. Angiulo, 897 F.2d 1169, 1195 (1st Cir.), cert. denied, 498 U.S. 845, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990). Leon has made no such showing in this case. The jury could have readily believed Panzardi’s argument that his name was used by a group of people at the hotel, and nonetheless have acquitted Leon. In sum, Panzardi’s opening remarks did not amount to a strong showing of prejudice to Leon, nor were they subsequently accompanied by prejudicial tactics at trial. Accordingly, the district court did not err in denying Leon’s motion for severance. C. Evidence Acquired Incident to the Warrantless Arrest Both Leon and Diaz argue that they were arrested without probable cause, and that therefore the items seized from their persons during their arrest should have been suppressed. Again, we disagree. In the context of warrantless arrests, as elsewhere, “[p]robable cause must be evaluated in light of the totality of circumstances.” United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991). Moreover, in order to establish that probable cause existed for such an arrest, the government “need not present the quantum of proof necessary to convict.” Id. See also United States v. Morris, 977 F.2d 677, 684 (1st Cir. 1992) (same), cert. denied, — U.S.-, 113 S.Ct. 1588, 123 L.Ed.2d 155 (1993); United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (same). Rather, it need only show that, at the time of the arrest, the facts and circumstances known to the arresting officers were sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense. Id.; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The arrests of Leon and Diaz clearly met these standards. Both Leon and Diaz had been observed on the evening prior to their arrest engaging in what appeared to be a drug deal. They were apprehended the following day returning to an area of the hotel which had recently been searched and which yielded large quantities" }, { "docid": "22441415", "title": "", "text": "in prosecuting the. case, there is no principled basis for attributing state action to Hancock. Of course, liability under § 1983 requires not only state action but also an unconstitutional deprivation of rights. The appellant fares no better on this aspect of the inquiry. At a bare minimum, if probable cause to arrest and prosecute the appellant existed, no unconstitutional deprivation occurred. See Franco de Jerez v. Burgos, 876 F.2d 1038, 1040 (1st Cir.1989) (holding that the filing of a criminal complaint does not violate the Constitution if the prosecutor had probable cause to believe the defendant had committed the crime); Mann v. Cannon, 731 F.2d 54, 62 (1st Cir.1984) (explaining that to prove a Fourth Amendment violation pursuant to § 1983, a “plaintiff must show at a minimum that the arresting officers acted without probable cause”). Probable cause to arrest exists if, at the moment of the arrest, the facts, and circumstances within the relevant actors’ knowledge and of which they had reasonably reliable information were adequate to warrant a prudent person in believing that the object of his suspicions had perpetrated or was poised to perpetrate an offense. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964); United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987). By definition, the determination does not require scientific certainty. See Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330-31, 76 L.Ed.2d 527 (1983). The inquiry into the existence vel non of probable cause is not to be undertaken from the perspective of hindsight but from the perspective of a hypothetical “reasonable man” standing in the reporting person’s shoes at the time when that person acted. See Figueroa, 818 F.2d at 1023; United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977). The preferred approach is pragmatic; it focuses on the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 462 U.S. at 231, 103 S.Ct. at 2328. Thus, the quantity and quality of proof necessary to ground a showing of probable cause is" }, { "docid": "6419841", "title": "", "text": "of the inquiry. Young, 105 F.3d at 7-8. For example, the First Circuit Court, in Quinn, explained that the mere presence of several officers and the blocking of an individual’s car does not, in itself, convert a simple investigative stop into an arrest. See Quinn, 815 F.2d at 156-57. In fact, not even the use of a drawn gun by a police officer converts an investigative stop into an arrest. United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987), cert. denied, 482 U.S. 916, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987). “An action tantamount to arrest has taken place if the officers’ conduct is more intrusive than necessary for an investigative stop.” United States v. Rose, 731 F.2d 1337, 1342 (8th Cir.1984). An officer may arrest a citizen only upon the reasonable belief that there is probable cause that he or she committed a crime or is about to commit a crime. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981). Probable cause to carry out an arrest without a judicial warrant will depend upon “whether, at the moment the arrest was made, ... the facts and circumstances within [the arresting officers’] knowledge and or which they had reasonably trustworthy information were sufficient to warrant an prudent man in believing [the person arrested] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). However, it is not necessary that an officer have personal knowledge of all the items of information which, taken together, constitute probable cause of an arrest without a warrant; it is enough that “the collective knowledge and information of all of the officers involved establishes probable cause.” United States v. Rose, 541 F.2d 750, 756 (8th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1178, 51 L.Ed.2d 584 (1977). The Court today believes that reasonable suspicion — as opposed to probable cause — is sufficient to render the warrant requirement unnecessary, pursuant to all the circumstances of this case. After all, “[t]he touchstone of the Fourth Amendment" }, { "docid": "13160987", "title": "", "text": "a suppression hearing by failing to move for such a hearing prior to the commencement of his trial. See United States v. Gomez, 770 F.2d 251, 253 (1st Cir.1985); United States v. Barletta, 644 F.2d 50, 54 (1st Cir.1981). The decision to grant or deny Leal relief under Fed.R.Crim.P. 12(f) rests in the district court’s sound discretion and may not be overturned by this court absent a showing of abuse. Gomez, 770 F.2d at 253. Here, no such abuse has been shown. Moreover, even had Leal preserved this issue for appeal, which he did not, the district court properly found probable cause for Leal’s arrest, thus making the search incident to that arrest lawful. “The constitutionality of a warrantless arrest ‘depends ... upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964)). Of course, the government need not prove beyond a reasonable doubt that a suspect has committed an offense prior to making a warrantless arrest, Figueroa, 818 F.2d at 1023; United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979), but need only make an objective showing that as a matter of probabilities, the defendant was involved in the criminal activity for which he was arrested. Figueroa, 818 F.2d at 1023-24; United States v. McCambridge, 551 F.2d 865, 870 (1st Cir.1977). The probabilities in this case weigh in the government’s favor. On the night of September 3, 1985, after Leal’s codefendants had been arrested, they provided the Ponce Police Department and the customs officers with descriptions of Leal. Serra described him as “Venezuelan, white, brown hair, tall, thin ... and approximately 40 years old,”" }, { "docid": "1703112", "title": "", "text": "U.S. at 343, 341, 106 S.Ct. at 1097, 1096). The officers are therefore entitled to qualified immunity “so long as the presence of probable cause is at least arguable.” Ricci v. Urso, 974 F.2d 5, 7 (1st Cir.1992); Prokey, 942 F.2d 67, 72 (1st Cir.1991); Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir.1985). Under the Fourth Amendment, the right to be free from unreasonable seizures of the person gives rise to a.requirement that arrests be supported by probable cause. See, e.g., Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 224, 13 L.Ed.2d 142 (1964). As the Court explained in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963): It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion ..., though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would “warrant .a man of reasonable caution in the belief” that a felony has been committed ... — must be measured by the facts of the particular case. Id. at 479, 83 S.Ct. at 413 (citations omitted). The probable cause test is an objective one, for, as the Supreme Court noted in Beck, “[i]f subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Beck, 379 U.S. at 97, 85 S.Ct. at 229. Therefore, we have stated that probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck, 379 U.S. at 91, 85 S.Ct. at 225 (1964)). Finally, in reviewing any determination regarding the sufficiency of cause to effect an arrest we must “consider the totality of circumstances" }, { "docid": "23574527", "title": "", "text": "been at the South Shore Plaza. Officer Murphy quickly made a sweep of the car and opened the trunk. He felt two loaded guns in the blue and tan bag and found a radar detector and police scanner in the brown paper bag. Maguire responded negatively when asked if he or Kav-anagh had a permit for the guns. The two were then arrested, given Miranda warnings, transported to the Braintree police station, booked and photographed. II. PROBABLE CAUSE Defendants have challenged the district court’s findings of probable cause both for lawful arrest and for search and seizure of the evidence found in the blue Oldsmobile. Our exploration of probable cause proceeds on several levels. First, we examine the district court’s determination of probable cause and its denial of defendants’ motions to suppress the evidence seized. We look at the facts in the light most favorable to the court’s ruling and accept its findings unless they are clearly erroneous. See United States v. Moscatiello, 771 F.2d 589, 596 (1st Cir.1985); United States v. Patterson, 644 F.2d 890, 894 (1st Cir.1981); 3 C. Wright, Federal Practice and Procedure § 678, at 805 & n. 24 (2d ed. 1982). Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1983)). This court, as well as the district court, must consider the totality of circumstances to evaluate the government’s demonstration of sufficient “ ‘[probability ... of criminal activity.’ ” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983) quoted in United States v. Jorge, 865 F.2d 6, 9 (1st Cir.), cert. denied, 490 U.S. 1027, 109 S.Ct. 1762, 104 L.Ed.2d 198 (1989). Because there are “ ‘so many variables in the probable cause equation,’ ” probable cause findings are not invariably" }, { "docid": "23574528", "title": "", "text": "890, 894 (1st Cir.1981); 3 C. Wright, Federal Practice and Procedure § 678, at 805 & n. 24 (2d ed. 1982). Probable cause exists when “ ‘the facts and circumstances within [the police officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [defendant] had committed or was committing an offense.’ ” United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1983)). This court, as well as the district court, must consider the totality of circumstances to evaluate the government’s demonstration of sufficient “ ‘[probability ... of criminal activity.’ ” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983) quoted in United States v. Jorge, 865 F.2d 6, 9 (1st Cir.), cert. denied, 490 U.S. 1027, 109 S.Ct. 1762, 104 L.Ed.2d 198 (1989). Because there are “ ‘so many variables in the probable cause equation,’ ” probable cause findings are not invariably bound by precedent. Id. 462 U.S. at 238 n. 11, 103 S.Ct. at 2332 n. 11 quoted in Jorge, 865 F.2d at 9 n. 1. “Probability is the touchstone.... [The] government need not show ‘the quantum of proof necessary to convict.’ ” Jorge, 865 F.2d at 9 (quoting United States v. Miller, 589 F.2d 1117, 1128 (1st Cir.1978)). Given the facts, we find that there was probable cause to arrest even before the search of the car and its trunk. The entire, tightly forged chain of circumstances had a number of links. It began with Lieutenant Murphy’s hearing of the armed robbery on his police radio, continued with his first sighting the four fleeing men just two minutes later and his following them to the Plaza, then culminated in the arrests of Maguire and Kavanagh within seventeen minutes of Officer Murphy’s first hearing of the robbery. The close proximity of the robbed bank to the expressway, the proximity of the expressway to the place where the men were on the embankment, and the proximity of" }, { "docid": "7204624", "title": "", "text": "cause and postponing an arrest until the mood strikes. This argument has been made and rejected before in analogous contexts, see, e.g., Watson, 423 U.S. at 414, 423-24, 96 S.Ct. 820 (holding that a warrantless arrest based on probable cause may be made in a public place even though the officers had ample prior opportunity to obtain an arrest warrant, yet eschewed that course); United States v. DeMasi, 40 F.3d 1306, 1312 (1st Cir.1994) (refusing “to attach significance to the ' fact that the government had ample time to obtain a warrant but declined to procure one”), and we reject it here. Put simply, when probable cause exists, the timing of an arrest is a matter that the Constitution almost invariably leaves to police discretion. See, e.g., Watson, 423 U.S. at 423-24, 96 S.Ct. 820; United States v. Bizier, 111 F.3d 214, 216-17, 220 (1st Cir.1997). We hold, therefore, that if the police have gained lawful entry to an individual’s home based on a valid search warrant, they may arrest the individual before commencing the search, provided that they have probable cause to do so. Consequently, the issue before us reduces to whether the facts and circumstances within the agents’ knowledge at the time of Winchenbach’s arrest were sufficient to yield probable cause. Like the district court, see Winchenbach, 31 F.Supp.2d at 165, we conclude that they were. Prior opinions guide this inquiry. We begin with bedrock: probable cause to effect an arrest does not require the same level of certitude or quantum of proof that is necessary to convict. See United States v. Figueroa, 818 F.2d 1020, 1023 (1st Cir.1987). Instead, probable cause exists when, “at th[e] moment [the arrest is made,] the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). For this purpose, the “fellow officer” rule applies, so that as a general matter (subject to exceptions not" } ]

[ { "docid": "13442447", "title": "", "text": "SIBLEY, Circuit Judge. The appellant was ruled for a contempt of court on the affidavit of a probation officer {hat he had been forcibly interfered with. Portions of appellant’s answer to the rule were stricken, his demand for a jury trial was denied, and on a trial before the eourt ho was sentenced to imprisonment for twelve months. He appeals, assigning error on each ruling hut omitting to bring np the evidence. We can consider only what appears on the face of the record. The affidavit states in substance that affiant, a probation officer, was in the execution of his duty and carrying out an order of the District Court in investigating a named probationer of the court when he was attacked and assaulted by appellant, who was attempting to prevent affiant from doing his duty as probation officer; that appellant used abusive, profane, and vulgar language, creating a disturbance, and attacked affiant with his fists, rendering the use of force by affiant necessary to protect himself. The rule signed by the judge referred to the affidavit, and required cause to be shown why appellant should not be adjudged in contempt of court. Appellant’s answer was in seven numbered paragraphs, the first being a general assertion that he was not guilty, and the seventh being a general denial of all facts contained in the affidavit. The intervening paragraphs were stricken on demurrer on the grounds that the facts they set np were not responsive to the rule, were not a defense to the rule, and were not a justification of the acts charged. The facts alleged, aside from legal conclusions, were that the occurrence did not happen in the presence of the court nor so near as to obstruct the administration of justice; that the probationer bad been put on probation four months before and no investigation for the purpose of recommending probation was in progress; that the altercation happened after the probation officer had completed his visit to the probationer’s house and was seated in his car preparing to drive away; and that the altercation therefore had nothing to" } ]

[ { "docid": "13442449", "title": "", "text": "do with the line of duty of the probation officer. Proceedings for contempt of court are summary in form and swift in execution. Special pleading and formal demurrers are out of place. When the disturbing act is a direct contempt of the court, in its presence or so near thereto as to obstruct the administration of justice, no formality of procedure need be observed, but on oral order the offender may be at once brought to the bar and, failing to purge himself of contempt, may' be fined or imprisoned on the court’s own knowledge of what occurred, assisted by testimony if desired. This procedure is not denied to District Courts by 28 USCA § 385. When the contemptuous obstruction is not in or about the court, but is indirect through “resistance by any * * * person to any lawful writ, process, order, rule, decree, or command of the said courts” in the concluding words of section 385, a formulated charge, a hearing before the eourt, and a formal judgment of guilt ought to precede punishment. This procedure was required in the present case, for in view of the stricken pleading we must assume that the occurrence did not happen in eourt nor so near as to obstruct its proceedings. The stricken contention that the altercation occurred, not while the officer was discharging his duties in interviewing the probationer but afterwards, and that it had nothing to do with the lino of duty of the probation officer, went to the merits of the charge of contempt. The probation officer is appointed by the court to serve the eourt and has duties fixed by law and has the powers of a deputy marshal in making arrests. 18 USCA §§ 726, 727. He is a ministerial officer of the eourt, and the eourt has power to protect him while executing its orders and commands, whether oral or written. He is entitled to. such protection both to go and to return in safety. But obstruction of him must be with knowledge of his official character and mission and must be willful and" }, { "docid": "13052161", "title": "", "text": "of such questions. The court then directed, “Proceed on that then, without reference to the other, and without prejudice to the right to bring him back on the question of what occurred today.” At the conclusion of that hearing the court found appellant guilty of contempt. Formal findings of fact and conclusions of law and a formal judgment and sentence were thereafter entered. Ballantyne promptly appealed from this judgment of conviction. Thereafter, on October 14,- 1955, the Government filed an additional motion for a show cause order and criminal contempt, which the court granted. As a result of that hearing, the court entered its findings of fact, again found appellant guilty of contempt for disobeying the order or orders of the court by refusing to answer the questions, and imposed an additional sentence of six months to run concurrently with the previous sentence. As to his first conviction for contempt, the appellant contends: (1) that the court did not comply with Rule 42, Federal Rules of Criminal Procedure, 18 U. S.C.A., in that it did not “state the essential facts constituting the criminal contempt charged and describe it as such”, (2) that the appellant was entitled to a jury trial, (3) that, under the protection of the Fifth Amendment, appellant was not in contempt for refusing to answer the questions. As to his second conviction, the appellant makes the same contentions, and also that the district court had been deprived of jurisdiction by the prior appeal to this Court and that the second contempt was barred by the first. I. Sufficiency of the Notice. We think the record shows adequate and substantial compliance with the spirit of Rule 42(b) [Footnote (6), supra], and that throughout each proceeding appellant’s counsel was sufficiently informed of the basis for each charge, both from other pertinent statements of the court, and by virtue of his admitted possession before each hearing of the complete transcript of all prior grand jury proceedings made the basis of the contempt charges. In this posture of the record, and appellant being charged with knowledge of those questions which he" }, { "docid": "14630998", "title": "", "text": "BAZELON, Chief Judge: This appeal presents a single question: may a criminal defendant who is summarily punished for contempt of court under Rule 42(a) of the Federal Rules of Criminal Procedure and 18 U. S.C. § 401(1) later be prosecuted under different penal statutes for the same act ? We hold that he can. Appellant was on trial for robbery in February 1963. On the third day of trial, February 14th, moments after the court convened and with the jury in the box, appellant threw an ice-filled plastic water pitcher at the prosecutor, hitting him in the shoulder and causing the pitcher to break. The trial judge immediately excused the jury and told appellant that whether he had been in contempt would be considered at sentencing if he were found guilty or, if he were acquitted, immediately thereafter. The trial resumed after a half hour recess. Later that same day, the trial was completed with a verdict of guilty as charged. One week later, on February 21, 1963, appellant was sentenced to imprisonment for three to nine years for the robbery offense. At the same time, the court found appellant in contempt of court and sentenced him to one year imprisonment, the sentence to be served consecutively to the sentence for the robbery conviction. Four days later, appellant was indicted for assault with a dangerous weapon (22 D.C.Code § 502) and assault on a federal officer engaged in the performance of his official duties (18 U.S.C. § 111). He was tried before a jury on July 15, 1963, and found guilty as charged. The trial judge sentenced him to one to three years on each count, the sentences to run concurrently with each other but consecutively to the sentences previously imposed for robbery and contempt. The ensuing procedural history of this case — recounted in the margin — is not directly relevant to the issue on this appeal. Appellant now seeks to reverse a judgment of the District Court denying his motion to void the assault conviction and sentence on the ground that the Double Jeopardy Clause precluded the prosecution" }, { "docid": "12499832", "title": "", "text": "of Conviction and to Recall the Sentence”, same being sworn to by the attorney and supported by appellant’s affidavit. The motion set out that, in view of the fact that appellant was under life sentence and was not subject to parole as long as the contempt sentence remained outstanding, that sentence would cause appellant to be imprisoned for the rest of his natural life rather than for-a term of ten years and six months as was customarily the case with prisoners whose behavior was good. Appellant’s affidavit stated thpt he would be subjected to danger of loss of his life or grave bodily harm if he testified against M.aenza, and that the warden of the prison had expressed in the presence of a number of officials that such testimony by appellant would “tend to place him in grave danger of physical harm.” The Court below entered its judgment without passing on this motion to vacate and to recall the sentence and without hearing any testimony to determine the truth or falsity of the statements and claims made by appellant. This we think was error. A Court would not lightly require a witness to testify if it were convinced that death or serious bodily harm would ensue therefrom. The Court below evidently did not believe appellant’s testimony. But it had no right to reject without a hearing his uncontradicted statements and particularly was this true when appellant’s statements were buttressed by his affidavit and that of the attorney in connection with the motion. From these documents it appeared that the warden of the penitentiary would tend to corroborate appellant’s testimony and that the United States Attorney had been advised of appellant’s apprehensions. The Supreme Court reversed a decision of the Court of Appeals for the Third Circuit which struck from the record and refused to consider a “Petition for Reconsideration of. Allowance of Bail Pending Appeal” filed in the District Court two weeks after the contempt order had been entered, on the ground that the facts disclosed by the petition were “not before the court when it found appellant in contempt”." }, { "docid": "8067696", "title": "", "text": "McMILLIAN, Circuit Judge. Appellant Donald Clay appeals from a judgment finding him guilty of possession of a firearm as a convicted felon, 18 U.S.C. App. § 1202(a)(1). The district court imposed an eighteen-month suspended sentence and four years of probation. For reversal appellant argues that the district court erred in failing to sustain his motion to suppress physical evidence obtained as a result of an alleged illegal search and seizure in violation of his fourth amendment rights. For the reasons discussed below, we reverse and vacate the judgment of the district court. I. Background Pursuant to a state search warrant issued on March 23, 1979, police entered the residence of Donald Love, located at 6213 Walrond, Kansas City, Missouri, in search of drugs, contraband and firearms. The search warrant was executed by uniformed and undercover agents during the early evening hours. Shortly after the search began, appellant, who was neither a suspect in the investigation nor an anticipated subject of the search, approached the house, knocked on the storm door and was confronted by Sergeant Tom Moss, an undercover police agent who was dressed in blue jeans and a T-shirt. Sgt. Moss opened the door, displayed his badge and identification, and ordered appellant into the house. Appellant immediately stepped backwards but did not attempt to run away. Sgt. Moss pulled out his revolver and again ordered appellant into the house. Appellant entered the house whereupon Sgt. Moss requested his investigator to conduct a pat down search. A small quantity of marijuana and a gun were discovered. Appellant moved to suppress the evidence seized. Appellant argued that the search was unconstitutional because it was done without a warrant, without probable cause, without consent, and not incident to a valid arrest. Appellant stressed that the stop and frisk was not based upon objective facts from which a police officer could reasonably conclude that appellant was involved in criminal activity. The government sought to justify the frisk under the doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A full evidentiary hearing was held on November 26," }, { "docid": "2648069", "title": "", "text": "RIPPLE, Circuit Judge. While investigating suspected drug activity at a motel in Mattoon, Illinois, police detained convicted-felon Shawn Adamson and discovered a .22 caliber handgun in his possession. Mr. Adamson was charged with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He moved to suppress the handgun as the product of an unreasonable search and detention. The district court denied his motion. Adamson then pleaded guilty and was sentenced to 24 months’ imprisonment. On appeal, he challenges the district court’s denial of his motion to suppress. For the reasons set forth in the following opinion, we affirm the judgment of the district court. I BACKGROUND A. Facts The facts pertaining to this appeal arise out of a routine home visit conducted by probation officers of a probationer’s motel room at Hannah’s Inn in Mattoon, Illinois. In the room, the officers discovered drug residue and paraphernalia and noticed several individuals hastily leaving the motel through a back exit. Together with local police, the officers began questioning these individuals. In this group was Adamson, who, when police found him, was clutching what appeared to be a bundle of clothing. A pat-down search of Adamson and his parcel revealed a handgun wrapped in a pillowcase. At the hearing on Adamson’s motion to suppress, the district court heard testimony from the police officers involved in the encounter with Adamson and from several witnesses called by the defense. The testimony conflicted. We first shall set forth the story presented by the officers and then describe the account of the defense witnesses. 1. The Officers’ Testimony At the suppression hearing, probation officer Steve Kelly, Mattoon police officers Brad Gabel and Jeremy Clark and Auxiliary Sergeant Steve Newlin testified for the Government. Kelly testified that he went to Hannah’s Inn with a few other probation officers to conduct a home visit for a probationer who resided there. The officers also were looking for a second probationer, who was the subject of an outstanding warrant. The probation officers first spoke with a motel employee who told them that the second probationer was staying" }, { "docid": "23597348", "title": "", "text": "WIENER, Circuit Judge: Defendant-Appellant Homero Valdez-Valdez, who pleaded guilty to re-entry by a deported alien, appeals the district. court’s enhancement of his sentence and assessment of criminal history points as a result of his felony kidnaping “conviction” in Texas, which occurred before his deportation. Valdez contends that the purported conviction is merely a deferred adjudication, as the state court did not enter an adjudication -of guilt. The gravamen of Valdez’s argument is that such a deferred adjudication is not the equivalent of a conviction under Texas law and-therefore cannot support a sentencing enhancement. He also appeals the district court’s addition of two criminal history points based on the kidnaping offense. Finding no merit in either of these arguments, we affirm the sentence imposed by the district court. •I FACTS AND PROCEEDINGS Valdez is an alien and a native of Mexico. In 1994, he was illegally present in the United States, and was arrested and formally deported. In 1993, Valdez had been charged in Texas state court with kidnaping, .to which he pleaded guilty. The Texas court, finding sufficient evidence of guilt, imposed six years probation and 180 days imprisonment on work release, with a deferred adjudication. The kidnaping proceeding is the foundation of both the sentence enhancement and the addition of criminal history points at issue in this appeal. In November 1996, INS agents found Valdez in Jefferson Parish, Louisiana. He admitted that he was from Mexico and that he had entered the United States illegally. The following month he was indicted for one count of illegal re-entry of a deported alien, in violation of 8 U.S.C. § 1326. Valdez pleaded guilty as charged; his plea was not made pursuant to a plea agreement. In his PSR the probation office made the following sentencing recommendations: Valdez’s base offense level is eight; four levels should be added because -his previous deportation occurred after conviction for a felony other than one involving violation of immigration laws, i.e., kidnaping; and he is entitled to a two-point reduction for acceptance of responsibility. As a result, his total offense level is ten. Finally, his criminal" }, { "docid": "14630999", "title": "", "text": "to nine years for the robbery offense. At the same time, the court found appellant in contempt of court and sentenced him to one year imprisonment, the sentence to be served consecutively to the sentence for the robbery conviction. Four days later, appellant was indicted for assault with a dangerous weapon (22 D.C.Code § 502) and assault on a federal officer engaged in the performance of his official duties (18 U.S.C. § 111). He was tried before a jury on July 15, 1963, and found guilty as charged. The trial judge sentenced him to one to three years on each count, the sentences to run concurrently with each other but consecutively to the sentences previously imposed for robbery and contempt. The ensuing procedural history of this case — recounted in the margin — is not directly relevant to the issue on this appeal. Appellant now seeks to reverse a judgment of the District Court denying his motion to void the assault conviction and sentence on the ground that the Double Jeopardy Clause precluded the prosecution for assault, once appellant had been convicted and sentenced for contempt. Appellant’s double jeopardy claim would have received short shrift several decades ago. The contempt power was long considered to be sui generis, and the usual procedural protections accorded criminal defendants were not applicable to one charged with contempt. This view of criminal contempt, however, has been substantially eroded by numerous Supreme Court decisions which have tended to assimilate criminal contempt to ordinary crimes. Appellant’s motion can only be denied, therefore, if a separate prosecution for a criminal offense, following a summary contempt conviction, does not violate the policies of the Double Jeopardy Clause. Even with this different starting point, appellant’s claim would still get short shrift if we were to follow the clearest statement from the Supreme Court on the double jeopardy rule for multiple prosecutions. In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911), petitioner had been prosecuted and convicted first of disorderly conduct, then of insulting a public officer. Though the Court found that he had" }, { "docid": "14631007", "title": "", "text": "justice. Accordingly, I hold the defendant in contempt, and sentence him to imprisonment for one year to commence at the expiration of the sentence that day imposed on a verdict of guilty in the above entitled. [signed] ” . Appellant appealed the robbery and contempt convictions but not the assault convictions. On October 1, 1964, this court affirmed the robbery conviction, subject to determination on remand of appellant’s mental condition. The contempt conviction was reversed and remanded for a hearing under the Federal Rules of Criminal Procedure, Rule 42(b), to determine appellant’s mental responsibility for the assaults. This court also ruled that the maximum sentence for a contempt conviction would be 90 days unless a jury trial were held. Rollerson v. United States. 119 U.S.App.D.C. 400, 343 F.2d 269 (1964). At the remand hearing on March 4th and 5th, 1965, following an examination of appellant at Saint Elizabeths Hospital, the Trial Judge vacated the prior sentence for contempt, found appellant unaffected with a mental disease or defect at the time lie threw the water pitcher, and sentenced appellant to 90 days for contempt, to run consecutively to the sentence imposed in the assault case. Appellant did not appeal the second contempt judgment. However, on March 9, 1967, he began collateral proceedings in the assault case, filing a motion for a writ of error coram nobis (which this court later treated as a motion under 28 U.S.C. § 2255) to avoid that conviction on the ground that he had been twice put in jeopardy for the same offense, since he had previously been found guilty of contempt. The District Court denied this motion on October 11, 1967. On November 26, 1968, this court affirmed the District Court’s denial of relief, without reaching the merits of the double jeopardy claim, on the ground that the claim could not be reached for the first time on collateral attack when there was no explanation of why it was not raised at trial. Rollerson v. United States, 132 U.S.App.D.C. 10, 405 F.2d 1078 (1968). The court recognized, however, that appellant could renew his claim if" }, { "docid": "13442450", "title": "", "text": "precede punishment. This procedure was required in the present case, for in view of the stricken pleading we must assume that the occurrence did not happen in eourt nor so near as to obstruct its proceedings. The stricken contention that the altercation occurred, not while the officer was discharging his duties in interviewing the probationer but afterwards, and that it had nothing to do with the lino of duty of the probation officer, went to the merits of the charge of contempt. The probation officer is appointed by the court to serve the eourt and has duties fixed by law and has the powers of a deputy marshal in making arrests. 18 USCA §§ 726, 727. He is a ministerial officer of the eourt, and the eourt has power to protect him while executing its orders and commands, whether oral or written. He is entitled to. such protection both to go and to return in safety. But obstruction of him must be with knowledge of his official character and mission and must be willful and intentional to be a contempt of court. It is not a contempt to have a fight no matter how unjustified with a ministerial officer when it is not intended to embarrass or obstruct the court or its officer. It is not criminal conduct hut obstruction of the court that is punishable as contempt. Ex parte Hudgins, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. If the striking out of the pleading here means that the court refused to consider the time, place, and cause of the altercation, we think it was error. Possibly the court meant only that such allegations were unnecessary because they were included in the general denials of paragraphs one and seven of the answer. But we cannot know that this is true, for not only are we in ignorance as to what evidence was admitted, but the judgment rendered altogether fails to indicate what facts were found. It is merely this: “It is now by the court here considered, ordered and adjudged," }, { "docid": "4237134", "title": "", "text": "RE, Chief Judge: Appellant, James McHugh, appeals from a judgment of conviction entered against him on March 27, 1984, following a jury-trial in the United States District Court for the District of Rhode Island. Appellant was convicted of possession of marijuana with intent to distribute, in violation of section 2 of Title 18, United States Code and section 401 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841 (1982). Appellant was also convicted of conspiracy to distribute marijuana, in violation of section 406 of the Act. On September 7, 1984, appellant was sentenced to a five-year term of imprisonment and fined $15,000 on the conspiracy count of the indictment. On the possession count of the indictment, appellant received five years probation and a special parole term of four years. The appellant contends that the district court, 575 F.Supp. Ill (D.C.R.I.1983), erred in denying his pre-trial motion to suppress evidence that he alleges was illegally obtained. In addition, appellant contends that the trial judge improperly denied his motion for judgment of acquittal. Since we find the contentions of the appellant without merit, we affirm the judgment of conviction, the denial of motion for judgment of acquittal, as well as the imposition of the prison sentence, probation, fine, and special parole term ordered by the district court. The Facts During July of 1983, a waterfront residence, known as the Malone Camp, located along the Sakonnet River in Portsmouth, Rhode Island, was the target of investigative surveillance by the Rhode Island Drug Task Force, a joint task force comprised of Federal, state, and local law enforcement officers. On July 15,1983, the members of the Task Force engaged in active surveillance of the Malone Camp included deputy United States Marshal, Joseph Thomas, and Inspector Norman Phelps, who was employed by the state division of drug control. They were accompanied by Officer Coffey, a member of the Little Compton, Rhode Island, Police Department. The officers were aided in their duties by use of binoculars, telescopes, and a nightscope. All three officers were conducting their surveillance from the shore opposite" }, { "docid": "12958787", "title": "", "text": "The evidence, standing alone, was amply sufficient for the jury to return a verdict of guilty against appellant; this is not a case in which a small amount of evidence to support the government’s case is so enlarged by advocacy as to make it appear that the government had made out a very strong case against the defendant. See Nalls v. United States, 5 Cir., 240 F.2d 707. Finally, appellant urges upon this Court the argument that error was committed in that Judge Rice, who sentenced him after Judge Thomason, who had conducted the trial and who had thereafter recused himself from further proceedings in this matter, refused to disqualify himself from sentencing appellant and refused his motion for a new trial. We think that the district judges herein involved acted properly within the context of Rule 25 of the Federal Rules of Criminal Procedure, 18 U.S. C.A. Judge Thomason’s power to disqualify himself was a matter of his own discretion, and it does not appear that he abused that discretion in so acting after a verdict had been brought in. In the first place, he had been stricken with pneumonia, and, while his disability was-not a permanent one, it seemed in doubt when he would be able to return to the bench and to dispose finally of this case. Secondly, he appears to have had knowledge of the fact that appellant was using' his name- in order to obtain affidavits-from certain witnesses in order to support his motion for a new trial. Further, the Record indicates that Judge-Rice thoroughly familiarized himself with the case before proceeding to the-matter of sentencing. ‘ From this it should be abundantly clear that in so-acting the judges not only attempted to dispose of this matter as speedily as-justice to the parties would allow but that in so doing they sought to protect the rights of the defendant-appellant. There is no error which would justify a reversal on this ground. For the reasons set out above, -the-judgment of the District Coux-t is Affirmed. . “Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with" }, { "docid": "2933941", "title": "", "text": "were made and denied, and defendants sentenced as follows: [1] Appellant Pruitt was sentenced to ten years’ imprisonment on assault charge, to run concurrently with his sentences for violation of the Internal Revenue Laws; [2] Appellant Chunn was sentenced to imprisonment for three years on assault charge; and [3] defendant Payne had imposition of sentence suspended, and he was placed on probation for a period of five years. After motions in arrest of judgment on behalf of Pruitt and Chunn were denied, they prosecuted this appeal on the assault charge conviction. No appeal was taken on behalf of Payne. Questions raised by the appeal are: [1] Was indictment so fatally defective that it should have been dismissed or quashed by district court?; and [2] Is there sufficient evidence to sustain convictions of appellants? We hold that the appeal must be dismissed and convictions affirmed. In proclaiming that the indictment was fatally defective, appellants contend that: [a] it does not allege facts necessary to constitute the offense, inasmuch as the essence of the crime is the interference with, or assault upon, a federal officer engaged in his official duties, or any person assisting him in the execution of same; and that the indictment here alleges that Boler was engaged in his own official duties, and that as a civilian he had no official duties; [b] indictment should have alleged knowledge or scienter on part of appellants that at time of assault Boler was engaged in assisting federal officers in the performance of their official duties; and [c] the use of the deadly weapon was improperly alleged, in that the allegations of the indictment failed to show sufficiently in what manner it was used in connection with the assault. We are unable to see merit in any of these contentions. Subject indictment was substantially in the words of the statute, and this court has repeatedly held that an indictment is adequate, if it substantially follows the language of the statute, or words of similar import; United States v. Martell, 335 F.2d 764 [4th Cir. 1964]; Finn v. United States, 256 F.2d 304" }, { "docid": "12499831", "title": "", "text": "half years, you have yourself to blame. It may well be that this sentence will serve that purpose.” The Court was proceeding under Rule 42(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. The foregoing took place in open Court on May 21st and 22nd and the judgment was signed June 20, 1956. This judgment recited that appellant refused to answer the questions propounded to him, that he was ordered to answer said questions and failed to comply and that “for the reasons orally assigned”, he was adjudged guilty of contempt for wilfully and knowingly violating the orders of the Court. During the foregoing proceedings, appellant was not represented by counsel and no interval elapsed between the refusal to answer the questions and the adjudication of contempt and no notice was, given him (except as appears from the language quoted above), that he stood charged with contempt. On June 1st, eight days after the proceedings above outlined and nineteen days before the judgment.was entered, appellant appeared by attorney and filed a “‘Motion to Vacate the Judgment of Conviction and to Recall the Sentence”, same being sworn to by the attorney and supported by appellant’s affidavit. The motion set out that, in view of the fact that appellant was under life sentence and was not subject to parole as long as the contempt sentence remained outstanding, that sentence would cause appellant to be imprisoned for the rest of his natural life rather than for-a term of ten years and six months as was customarily the case with prisoners whose behavior was good. Appellant’s affidavit stated thpt he would be subjected to danger of loss of his life or grave bodily harm if he testified against M.aenza, and that the warden of the prison had expressed in the presence of a number of officials that such testimony by appellant would “tend to place him in grave danger of physical harm.” The Court below entered its judgment without passing on this motion to vacate and to recall the sentence and without hearing any testimony to determine the truth or falsity of the statements and" }, { "docid": "5290458", "title": "", "text": "before a district judge. Bernardine moved for a judgment of acquittal on the ground that the government failed to prove that a reasonably specific, valid order or summons had been issued by a judge. The court determined that the probation officer was acting under the authority of the district judge when he issued the summons. The court denied the motion, found Bernardine guilty as charged, and sentenced him to serve five years of probation. On appeal, Bernardine contends that the government failed to prove an essential element of the contempt charge-that the court entered a lawful order of reasonable specificity. According to Bernardine, the order entered by the court could not support a contempt prosecution because it did not specify a date, time and place of appearance. Moreover, Bernardine contends that the “summons to appear” was issued by the probation officer rather than the district court; it did not comply with the Federal Rules of Criminal Procedure 4 and 9 ; and it was not signed by a judicial officer. Therefore, it was not a lawful court order, the disobedience of which can support a prosecution under 18 U.S.C. § 401(3). II. DISCUSSION In reviewing the sufficiency of the evidence in support of a 18 U.S.C. § 401(3) violation, we determine whether the evidence, when construed in the light most favorable to the government, would permit a jury to find the defendant guilty beyond a reasonable doubt. See United States v. Maynard, 933 F.2d 918, 920 (11th Cir. 1991). 18 U.S.C. § 401 provides in pertinent part: A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command. 18 U.S.C. § 401(3). To support a § 401(3) conviction, “ ‘the government must prove: (1) that the court entered a lawful order of reasonable specificity; (2) the order was violated; and (3) the violation was willful.’ ” Maynard, 933 F.2d at 920 (citation omitted); See also United States v. KS&W Offshore" }, { "docid": "15379031", "title": "", "text": "constituted the basis of the state indictments. Appellants were arraigned and pleaded not guilty on March 18. On April 8, appellants filed a motion in the federal court to suppress the tape recordings. On April 13, the Bristol County District Attorney nol prossed the state indictments against both appellants. On June 4, United States District Judge J. Walter Skinner commenced a hearing on appellants’ suppression motion. The hearing lasted five days. On July 9, Judge Skinner, in a well considered opinion, denied appellants’ motion, holding that the admission of the tape recorded evidence at appellants’ federal trial must be governed by federal, not state, law, and that the recordings had been obtained in compliance with federal law. Trial of the federal indictment began before United States District Judge W. Arthur Garrity on September 28. After ten days of trial, the jury found both appellants guilty on all counts. The court denied appellants’ motions for judgments of acquittal at the close of the government’s evidence, at the close of all of the evidence and after discharge of the jury. Judgments of conviction were entered on November 4. Jara-bek was sentenced to eighteen months imprisonment. Alecrim also was sentenced to eighteen months imprisonment, but service of the balance of his sentence is to be suspended after six months, at which time he has been ordered placed on probation for two years. Both appellants are at liberty on bail pending the instant appeals. Appellants argue on appeal (1) that the district court erred in admitting in evidence the tape recordings, claiming that they should have been suppressed under the stricter state statute; (2) that the government failed to prove sufficient interference with interstate commerce to provide the jurisdictional underpinning for a Hobbs Act prosecution; (3) that the district court erred in several of its evidentiary rulings; (4) that the district court erred in its jury charge in several material respects; and (5) that the district court erred in denying appellants’ motions for judgments of acquittal. We shall discuss each of appellants’ claims of error seriatim. II. ADMISSIBILITY OF THE TAPE RECORDINGS We turn" }, { "docid": "13501239", "title": "", "text": "FITZHENRY, Circuit Judge. This is an appeal from a judgment and sentence of the District Court, on October 3, 1933’, for contempt of court, upon a finding that appellant, while a witness before the grand jury, had failed to testify truthfully, and by said failure had obstructed and was obstructing justice in the court. Appellant was sentenced to imprisonment in the county jail for a period of three months, with the privilege of purging himself of said contempt within ten days by fully, freely, and truthfully testifying. On July 31, 1933, the grand jury for the Northern district of Illinois, Eastern division, was investigating “whether one William H. Malone had committed certain violations of the Internal Revenue and Income Tax Laws of the United States within three years last past,” etc. Appellant was called as a witness and testified fully. The grand jury for the July term did not complete its investigation and was ordered by the court to continue. On September 25th the grand jury returned a presentment to the court, charging “that the answers which said witness made to the questions propounded to him were evasive, false and misleading, with a deliberate and wilful intent to withhold the true facts within his knowledge and to hinder, .bjoek and delay the inquiry of this grand jury and to obstruct the due process of the Federal court and the administration of justice, as will more fully appear from the transcript of his testimony before this grand jury, which is hereto attached, made a part hereof and marked Exhibit 'A.’ ” The witness was called before the court on September 26, 1933, and ordered to appear again before the grand jury and make full, true, and complete answers to the matters concerning which he had heretofore been questioned, and particularly to make full, true, and complete answers to the following questions : “(1) With respect to a fee check from Huff & Cook for $12,500 on October 18,1927: “Now what was the purpose of drawing out $7,500 in cash, Mr. Blim ? “And what did you do with it? “You deny" }, { "docid": "11822146", "title": "", "text": "OPINION OF THE COURT SEITZ, Circuit Judge. Appellant was convicted by a jury and sentenced under 18 U.S.C. § 1001 of knowingly and willfully making a false statement in an application for license under the Federal Firearms Act. The materiality of the statement is not challenged. By this appeal appellant seeks an order either discharging him or granting him a new trial for reasons hereinafter considered. The trial record entitled the jury to conclude that on or about February 27, 1964, the appellant signed and caused Form 7 (Firearms) to be delivered to the District Director of Internal Revenue. By filing this form the petitioner sought a license under the Act to transport, ship and receive firearms and ammunition in interstate and foreign commerce. The printed form recited, insofar as here pertinent, that the undersigned applicant “states as follows: The applicant * * * has never been convicted of a crime punishable by imprisonment for a term exceeding one year.” The Government alleged that this statement was false and fraudulent in the light of its claimed proof that in 1945 the appellant was placed on probation for two years after pleading guilty to the crime of assault and battery in Pennsylvania, which crime was then punishable by imprisonment for a term exceeding one year. Additional facts are best developed in connection with the discussion of the assigned grounds of error. The appellant’s first contention is that his motion for a judgment of acquittal at the close of the Government’s case should have been granted because the Government failed to prove that any false statement of the appellant was made by him knowingly and willfully. The Government of course had the burden under the statute (18 U.S.C. § 1001) of introducing evidence which would justify such a finding beyond a reasonable doubt. However, the appellant’s argument as to the Government’s proof seems really to be based on a legal issue rather than an evaluation of its sufficiency. We say this because appellant’s counsel argued that the fact that appellant may have been sentenced to two years on probation in 1945 did" }, { "docid": "2137174", "title": "", "text": "his attack upon the judgment back to the state courts. In June 1958 he applied for a third time to the Trial Judge for a writ of error coram nobis on the ground that he had told the probation officer who was charged with the preparation of his presentence report that he was guilty only of manslaughter, which information the officer had failed to report to the Trial Court, and therefore petitioner’s plea should have been withdrawn. The Trial Judge conducted a hearing in September 1959 and, after three years, sustained the writ and vacated the judgment of conviction upon the ground that, “My own recollection of the entire incident and the defendant’s state of mind at the time of the plea leaves open a real possibility that the defendant did not fully understand the nature of his plea. This is further evidenced in his conversation with the probation officer.” The State appealed and the Appellate Division reversed, holding that neither the pleadings nor the proof adduced upon the hearing warranted the granting of the application. In its per curiam opinion the Appellate Division stated: “The Trial Judge twice before had determined — on May 4,1956 and on July 12, 1957 — that defendant fully understood the nature of his plea of guilty to second degree murder. In the habeas corpus proceeding in the Federal court, Judge Weinfeld on March 13,1958, based in part on the Trial Judge’s testimony, also had determined that defendant fully understood the nature of his plea. Under the circumstances, the present coram nobis application should not have been granted based on a ‘possibility’ that defendant did not fully understand the nature of his plea. * * * Defendant’s oral proof of a prior statement to an unnamed probation officer that he was guilty of no crime other than manslaughter was insufficient to overcome these findings.” Leave to appeal to the New York Court of Appeals was refused in February 1964 and the Supreme Court denied certiorari. Thereupon petitioner again returned to this Court. In his present petition, filed in August 1964, he alleges that his" }, { "docid": "6859482", "title": "", "text": "forcibly assault, oppose, and interfere with a certain officer of the internal revenue, to wit, A. J. Ryals, said A. J. Ryals being then and there a federal prohibition agent, * * * engaged in the execution of his duties in the enforcement of the National Prohibition Act, * * * and the said Russell Gay aforesaid did then and there in such forcible assault, opposition, and interference use a deadly weapon, to wit, a knife, * * * -with intent to commit bodily injury upon the said A. J. Ryals aforesaid, and to deter and to prevent him from the discharge of his duties aforesaid.” The second count, except as to the name of the defendant, is in the same language as the first count of the indictment against Roy Gay. The third count charges the destruction of a pitcher of intoxicating liquor after it had been seized by Ryals while acting in his capacity as prohibition agent. Russell Gay’s sentence was not as great as could have been imposed under the first count. In each ease the court denied a motion to quash the indictment on the ground that it failed to allege that the defendant knew Ryals was a prohibition agent. Ryals testified that he was a prohibition agent; that he went into a restaurant where he saw Roy Gay serving drinks of intoxicating liquor out of a pitcher; that he bought a drink, tested it, found that it was whisky, seized the pitcher and told Roy Gay that he was a federal officer; that Gay replied that he did not care if he was; that both defendants thereupon assaulted Ryals, took the pitcher away from him, and poured the whisky out; and that on the same occasion Russell Gay attacked him with a butcher knife. In Roy Gay’s case the court omitted to instruct the jury that there could be no conviction unless the defendant knew Ryals was a prohibition agent. Exceptions were taken to portions of the court’s charge, but it is not contended that those portions contain any incorrect statement of the law, and" } ]

[ { "docid": "5538548", "title": "", "text": "manner of TLI, 823 F.3d at 613. Claim 4 adds the abstract concept of storing, and claims 6-7 add the abstract concept of editing. Mr. Berkheimer argues that the claims are not abstract because the “parsing” limitation roots the claims in technology and transforms the data structure from source code to object code. Limiting the invention to a technological environment does “not make an abstract concept any less abstract under step one.” Intellectual Ventures I, 850 F.3d at 1340. That the parser transforms data from source to object code does not demonstrate non-abstractness without evidence that this transformation improves computer functionality in some way. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1258 (Fed. Cir. 2017) (“[W]e must ... ask whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea.” (internal quotations omitted) ); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed. Cir. 2016) (“[T]he first step in the Alice inquiry in this case asks whether the focus of the claims [was] on the specific asserted improvement in computer capabilities ... or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool”). No such evidence exists on this record. Indeed, Mr. Berkheimer admitted that parsers had existed for years prior to his patent. J.A. 1106. Because the claims are directed to an abstract idea, we proceed to the second step of the Alice inquiry. At step two, we “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 566 U.S, at 78-79, 132 S.Ct. 1289). The second step of the Alice test is satisfied when the claim limitations “involve more than performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Content Extraction, 776 F.3d at 1347-48 (quoting Alice, 134 S.Ct. at 2359). The question of whether a claim element or combination of elements is well-understood, routine and conventional" } ]

[ { "docid": "1468738", "title": "", "text": "” Amdocs, 56 F.Supp.3d at 817 (quoting Alice, 134 S.Ct. at 2356) (citing Bilski v. Kappos, 561 U.S. 593, 609, 130 S.Ct. 3218, 177 L.Ed.2d 792 (2010)). In other words, a court “must identify the purpose of the claim ... what the claimed invention is trying to achieve ... and ask whether the purpose is abstract.” Cal. Inst. of Tech. v. Hughes Commc’ns Inc., 59 F.Supp.3d 974, 991 (C.D.Cal.2014). Importantly, though .the Supreme Court has not “delimit[ed] the precise contours of the ‘abstract ideas’ category” of patent ineligible subject matter, Alice, 134 S.Ct. at 2357, the Court has indicated that such category is not limited simply to “preexisting, fundamental truth[s] that exist in principle apart from any human action,” id. at 2356 (alteration in original) (citation and internal quotation marks omitted). Indeed, the Supreme Court has suggested that a “method of organizing human activity” or “fundamental economic practice” can fall within the patent-ineligible category of abstract ideas. See id. Furthermore, the Federal Circuit has rejected the notion that “the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction ■ into something concrete.” Ultramercial, 772 F.3d at 715. At step one, prior art plays no role in a court’s analysis. See, e.g., Enfish, LLC v. Microsoft Corp., 56 F.Supp.3d 1167, 1173-75 (C.D.Cal.2014). But see McRO, Inc. v. Valve Corp., No. SACV 13-1874-GW(FFMx), 2014 WL 4772200, at *9 (C.D.Cal. Sept. 22, 2014) (unpublished). If an invention is directed toward a patent-ineligible abstract idea, second, the Court must “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1297-98). Those additional elements “must be more than ‘well-understood, routine, conventional activity.’ ” Ultramercial, 772 F.3d at 715 (quoting Mayo, 132 S.Ct. at 1298). This second step is “a search for an ‘inventive concept’ — ie., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent" }, { "docid": "10140724", "title": "", "text": "where ‘it matters not by what process or machinery the result is accomplished.’”) (quoting O’Reilly v. Morse, 56 U.S. 62, 113, 15 How. 62, 14 L.Ed. 601 (1854)). Similarly, if the essential features of the claim can be implemented within the human mind or with pen and paper, the claim is directed to an abstract idea. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011). If the relevant claims are directed to an abstract idea, we proceed to the second step of the Alice inquiry. Here, we look for an “inventive concept — i.e., an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1294; quotation marks omitted; alterations incorporated). An artificial attempt by the drafter “to limit the use of the [abstract idea] to a particular technological environment” is not enough. Mayo, 132 S.Ct. at 1297 (quotation marks and citation omitted). Nor will it suffice to “append[ ] ... well-understood, routine, conventional activities previously engaged in by workers in the field.” Intellectual Ventures I LLC v. Symantec Corp. (“Syman-tec Corp.”), 838 F.3d 1307, 1313 (Fed. Cir. 2016) (quoting Alice, 134 S.Ct. at 2357, 2359; quotation marks omitted; alterations incorporated). However, an inventive concept may exist where the claim includes a “non-conventional and non-generic arrangement of known, conventional pieces.” BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). A comparison of two Supreme Court cases illustrates the type of analysis we perform when confronted with an abstractness challenge. In Diamond v. Diehr, 450 U.S. 175, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981), the relevant claims required a computer to perform “a well-known mathematical equation” as part of a broader process for curing rubber. Id. at 187, 101 S.Ct. 1048. The Court held that the claims were patent eligible, notwithstanding their use of an abstract equation, because they “used the equation in a process designed to solve a technological problem in" }, { "docid": "9108524", "title": "", "text": "makes the computer process forms more efficiently. J.A. 429 ¶ 39. These allegations suggest that the claimed invention is directed to an improvement in the computer technology itself and not directed to generic components performing conventional activities. We have repeatedly held that inventions which are directed to improvements in the functioning and operation of the computer are patent eligible. See, e.g. , Visual Memory LLC v. NVIDIA Corp. , 867 F.3d 1253, 1258-59 (Fed. Cir. 2017) ; Amdocs (Israel) Ltd. v. Openet Telecom, Inc. , 841 F.3d 1288, 1300-02 (Fed. Cir. 2016) ; Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1336 (Fed. Cir. 2016) ; see also DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245, 1257 (Fed. Cir. 2014). Viewed in favor of Aatrix, as the district court must at the Rule 12(b)(6) stage, the complaint alleges that the claimed combination improves the functioning and operation of the computer itself. These allegations, if accepted as true, contradict the district court's conclusion that the claimed combination was conventional or routine. J.A. 26. Therefore, it was an abuse of discretion for the district court to deny leave to amend. While the ultimate determination of eligibility under § 101 is a question of law, like many legal questions, there can be subsidiary fact questions which must be resolved en route to the ultimate legal determination. Relevant to this case, the second step of the Alice / Mayo test requires examining \"the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Alice , 134 S.Ct. at 2357 (quoting Mayo , 566 U.S. at 72, 79, 132 S.Ct. 1289 ). If the elements involve \"well-understood, routine, [and] conventional activity previously engaged in by researchers in the field,\" Mayo , 566 U.S. at 73, 132 S.Ct. 1289, they do not constitute an \"inventive concept.\" We have explained that the second step of the Alice / Mayo test is satisfied when the claim limitations \"involve more than performance of 'well-understood, routine, [and] conventional activities previously known to the industry.'" }, { "docid": "9659362", "title": "", "text": "to an inventive concept. BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). For example, in BASCOM, the Federal Circuit addressed a claim for internet content filtering performed at “a specific location, remote from the end-users, with customizable filtering features specific to each end user.” Id. Because this “specific location” was different from the location where internet content filtering was traditionally performed, the Federal Circuit concluded this was a “non-conventional and non-generic arrangement of known, conventional pieces” that provided an inventive concept. Id. As another example, in Amdocs (Israel) Ltd. v. Openet Telecom, Inc., the Federal Circuit found that claims relating to solutions for managing accounting and billing data over large, disparate networks recited an inventive concept because they contained “specific enhancing limitation^] that necessarily incorporate^] the invention’s distributed architecture.” 841 F.3d 1288, 1301 (Fed. Cir. 2016). The use of a “distributed architecture,” where information about accounting and billing data was stored near the source of the information in the “disparate networks,” transformed the claims into patentable subject matter. Id. 4. Preemption In addition to these principles, courts sometimes find it helpful to assess claims against the policy rationale for § 101. The United States Supreme Court has recognized that the “concern that un-dergirds [the] § 101 jurisprudence” is preemption. Alice, 134 S.Ct. at 2358. Thus, if a claim is so abstract so as to “pre-empt use of [the claimed] approach in all fields, and would effectively grant a monopoly over an abstract idea,” it is not patent-eligible. Bilski 561 U.S. at 612, 130 S.Ct. 3218. However, the inverse is not true: “[w]hile preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” FairWarning, 839 F.3d at 1098 (internal quotation marks and citation omitted). III. DISCUSSION Defendant’s Motion to Dismiss contends that the asserted claims of the ’051 and ’217 patents fall within the patent-ineligible “abstract ideas” exception to § 101. The Court applies the Alice framework described above to these claims. A. Scope of Analysis and Representative Claims Before turning to the substance of the" }, { "docid": "9256950", "title": "", "text": "and explaining that dependent claims are \"directed to improving 'the reliability and optimization of the cloud environment in which the application runs'-a context required by parent claim 1\") (emphasis added) But the Court has already concluded that the asserted independent claims are directed to an abstract idea: this was the Court's decision in the March 31, 2016 Order (C.A. No. 14-1192 D.I. 44; C.A. No. 14-1193 D.I. 52), and the Court has today denied reconsideration of that Order. Plaintiff does not point to any intrinsic evidence to show that any of the dependent claims, taken as a whole, teaches methods that are not abstract or that actually improve the functioning of computers. (See generally D.I. 132 at 22-26) Thus, Plaintiffs reliance on contrary expert opinion alone is insufficient to create a genuine issue of material fact. See Mortg. Grader, Inc. v. First Choice Loan Servs. Inc. , 811 F.3d 1314, 1325 (Fed. Cir. 2016) (\"The mere existence in the record of dueling expert testimony does not necessarily raise a genuine issue of material fact [in the context of a § 101 analysis].\"). In sum, Defendants have met their burden at step one. 2. Step Two At step two, the Court examines the claim limitations \"more microscopically,\" Elec. Power Grp. , 830 F.3d at 1354, \"both individually and as an ordered combination to determine whether the additional elements transform the nature of the claim into a patent-eligible application,\" Alice, 134 S.Ct. at 2355 (internal quotation marks omitted). The analysis at this step is \"a search for an inventive concept-i.e., an element or combination of elements that is sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the ineligible concept itself.\" Alice, 134 S.Ct. at 2355 (internal quotations marks and brackets omitted). \"Mere recitation of concrete, tangible components is insufficient to confer patent eligibility to an otherwise abstract idea.\" In re TLI, 823 F.3d at 613. \"Rather, the components must involve more than performance of well-understood, routine, conventional activit[ies] previously known to the industry.\" Id. Defendants argue that the asserted dependent claims lack an inventive" }, { "docid": "19462769", "title": "", "text": "Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018) ; Berkheimer v. HP Inc., 881 F.3d 1360, 1364-65 (Fed. Cir. 2018). Like other legal questions based on underlying facts, this question may be, and frequently has been, resolved on a Rule 12(b)(6) or (c) motion where the undisputed facts, considered under the standards required by that Rule, require a holding of ineligibility under the substantive standards of law. See , e.g. , Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC , 874 F.3d 1329, 1341 (Fed. Cir. 2017) ; RecogniCorp, LLC v. Nintendo Co. , 855 F.3d 1322, 1328 (Fed. Cir. 2017) ; FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d 1089, 1098 (Fed. Cir. 2016) ; Genetic Techs. Ltd. v. Merial L.L.C. , 818 F.3d 1369, 1380 (Fed. Cir. 2016) ; Ultramercial, Inc. v. Hulu, LLC , 772 F.3d 709, 717 (Fed. Cir. 2014). This is such a case. Section 101 provides that \"[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.\" 35 U.S.C. § 101. The provision, however, \"contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.\" Alice Corp. Pty. Ltd. v. CLS Bank Int'l , --- U.S. ----, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014). A claim falls outside § 101 where (1) it is \"directed to\" a patent-ineligible concept, i.e. , a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered \"both individually and 'as an ordered combination,' \" do not add enough to \" 'transform the nature of the claim' into a patent-eligible application.\" Id. at 2355 ; see Mayo , 566 U.S. at 78-79, 132 S.Ct. 1289. The first stage of the Alice inquiry looks at the \"focus\" of the claims, their \" 'character as a whole' \"; and the second stage of the inquiry (where reached) looks more precisely at" }, { "docid": "9659361", "title": "", "text": "Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978)); see also Alice, 134 S.Ct. at 2358 (same). The Federal Circuit has similarly stated that attempts “to limit the use of the abstract idea to a particular technological environment” are insufficient to render an abstract idea patent eligible. Ultramercial, 772 F.3d at 716 (quotation marks omitted); see also Intellectual Ventures, 792 F.3d at 1366 (“An abstract idea does not become nonabstract by limiting the invention to a particular field of use or technological environment, such as the Internet.”). In keeping with these restrictions, the Federal Circuit has found that claims “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks” can be sufficiently transformative to supply an inventive concept. DDR, 773 F.3d at 1257 (claims that addressed the “Internet-centric problem” of third-party merchant advertisements that would “lure .,. visitor traffic away” from a host website amounted to an inventive concept). In addition, a “non-conventional and non-generic arrangement of known, conventional pieces” can amount to an inventive concept. BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016). For example, in BASCOM, the Federal Circuit addressed a claim for internet content filtering performed at “a specific location, remote from the end-users, with customizable filtering features specific to each end user.” Id. Because this “specific location” was different from the location where internet content filtering was traditionally performed, the Federal Circuit concluded this was a “non-conventional and non-generic arrangement of known, conventional pieces” that provided an inventive concept. Id. As another example, in Amdocs (Israel) Ltd. v. Openet Telecom, Inc., the Federal Circuit found that claims relating to solutions for managing accounting and billing data over large, disparate networks recited an inventive concept because they contained “specific enhancing limitation^] that necessarily incorporate^] the invention’s distributed architecture.” 841 F.3d 1288, 1301 (Fed. Cir. 2016). The use of a “distributed architecture,” where information about accounting and billing data was stored near the source of the information in the “disparate networks,” transformed the claims into patentable subject" }, { "docid": "9019843", "title": "", "text": "a question of law, based on underlying facts. See Aatrix Software, Inc. v. Green Shades Software, Inc., 882 F.3d 1121, 1125 (Fed. Cir. 2018) ; Berkheimer v. HP Inc., 881 F.3d 1360, 1364-65 (Fed. Cir. 2018). Like other legal questions based on underlying facts, this question may be, and frequently has been, resolved on a Rule 12(b)(6) or (c) motion where the undisputed facts, considered under the standards required by that Rule, require a holding of ineligibility under the substantive standards of law. See , e.g. , Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC , 874 F.3d 1329, 1341 (Fed. Cir. 2017) ; RecogniCorp, LLC v. Nintendo Co. , 855 F.3d 1322, 1328 (Fed. Cir. 2017) ; FairWarning IP, LLC v. Iatric Sys., Inc. , 839 F.3d 1089, 1098 (Fed. Cir. 2016) ; Genetic Techs. Ltd. v. Merial L.L.C. , 818 F.3d 1369, 1380 (Fed. Cir. 2016) ; Ultramercial, Inc. v. Hulu, LLC , 772 F.3d 709, 717 (Fed. Cir. 2014). This is such a case. Section 101 provides that \"[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.\" 35 U.S.C. § 101. The provision, however, \"contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.\" Alice Corp. Pty. Ltd. v. CLS Bank Int'l , --- U.S. ----, 134 S.Ct. 2347, 2354, 189 L.Ed.2d 296 (2014). A claim falls outside § 101 where (1) it is \"directed to\" a patent-ineligible concept, i.e. , a law of nature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, considered \"both individually and 'as an ordered combination,' \" do not add enough to \" 'transform the nature of the claim' into a patent-eligible application.\" Id. at 2355 ; see Mayo , 566 U.S. at 78-79, 132 S.Ct. 1289. The first stage of the Alice inquiry looks at the \"focus\" of the claims, their \" 'character as a whole' \"; and the second stage" }, { "docid": "9659358", "title": "", "text": "1314, 1324 (Fed. Cir. 2016) (claims for computer-implemented system to enable borrowers to anonymously shop for loan packages were abstract where “[t]he series of steps covered by the asserted claims ... could all be performed by humans without a computer”). Regardless of the particular analysis that is best suited to the specific facts at issue in a case, however, the Federal Circuit has emphasized that “the first step of the [Alice] inquiry is a meaningful one, i.e., ... a substantial class of claims are not directed to a patent-ineligible concept.” Enfish, 822 F.3d at 1335 (emphasis in original). The court’s task is thus not to determine whether claims merely involve an abstract idea at some level, see id. but rather to examine the claims “in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.” Internet Patents, 790 F.3d at 1346. 3. Alice Step Two—Evaluation of Abstract Claims for a Limiting Inventive Concept A claim drawn to an abstract idea is not necessarily invalid if the claim’s limitations—considered individually or as an ordered combination—serve to “transform the claims into a patent-eligible application,” Content Extraction, 776 F.3d at 1348. Thus, the second step of the Alice analysis (the search for an “inventive concept”) asks whether the claim contains an element or combination of elements that ensures that the patent in practice amounts to significantly more thañ a patent upon the abstract idea itself. Alice, 134 S.Ct. at 2355. The U.S. Supreme Court has made clear that a transformation of an abstract idea to a patent-eligible application of the idea requires more than simply reciting the idea followed by “apply it.” Id. at 2357 (quoting Mayo, 132 S.Ct. at 1294). In that regard, the Federal Circuit has repeatedly held that “[fjor the role of a computer in a computer-implemented invention to be deemed meaningful in the context of this analysis, it must involve more than the performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’.” Content Extraction, 776 F.3d at 1347-48 (quoting Alice, 134 S.Ct. at 2359) (alterations in original); see also Mortgage" }, { "docid": "19544656", "title": "", "text": "and if so, updating the toolbar. Thus, much like the claims in Intellectual Ventures I , \"instead of overriding a routine sequence of events,\" the instant claims apply generic components performing their routine functions \"to automate the delivery of software updates.\" 81 F.Supp.3d at 367. The specifications further confirm this conclusion because nothing in the specifications remotely suggests that the claims in the instant case produce a result that \"overrides the routine and conventional sequence of events\" for updating software on a computer. 773 F.3d at 1258-59. Finally, although the claims recite that certain steps are done \"automatically\" and \"dynamically,\" \"not every invention that automates a process ... is patentable.\" Procter & Gamble Co. v. Quantificare, Inc. , 288 F.Supp.3d 1002, 1021 (N.D. Cal. 2017). Indeed, \"[a] general purpose computer with minimal programming can perform functions 'automatically' and 'dynamically,' and implementation of an abstract idea on such a computer is not an inventive concept.\" Clear with Computers, LLC v. Altec Industries, Inc. , 2015 WL 993392, *4 (E.D. Tex. Mar. 3, 2015). Accordingly, the Court finds that nothing in the ordered combination of elements recited in the claims at issue bring them outside the realm of the abstract idea of updating toolbar software over a network without user intervention. Because the Court finds at Alice step one that the claims in the instant case are directed to an abstract idea and at step two that there is no inventive concept sufficient to save the claims, the Court concludes that the asserted claims are patent-ineligible under § 101. Defendants' motions for judgment on the pleadings are therefore GRANTED. IV. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants' motions for judgment on the pleadings. IT IS SO ORDERED. \"ooVoo ECF No.\" denotes docket entries in Case No. 17-CV-4487-LHK, MyMail, Ltd. v. ooVoo, LLC. \"IAC ECF No.\" denotes docket entries in Case No. 17-CV-4488-LHK, MyMail, Ltd. v. IAC Search & Media, Inc. One court has noted that, like all tools of analysis, the \"pencil and paper\" analogy must not be unthinkingly applied. See Cal. Inst. of Tech. v. Hughes Commc'ns Inc. ," }, { "docid": "2594539", "title": "", "text": "by Affinity is Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016). As in DDR Holdings, the focus of the claims in Enfish was on “an improvement to computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.” Id. at 1336. In this case, the claims are directed not to an improvement in cellular telephones but simply to the use of cellular telephones as tools in the aid of a process focused on an abstract idea. That is not enough to constitute patentable subject matter. See Elec. Power Grp., op. at 1354; see also McRo, Inc. v. Bandai Namco Games Am. Inc., No. 15-1080, 837 F.3d 1299, 1314, 2016 WL 4896481, at *8-9 (Fed. Cir. Sep. 13, 2016) (claims held patent-eligible because they made “a specific asserted improvement in computer animation”). B In applying step two of the Mayo/Alice analysis, our task is to “determine whether the claims do significantly more than simply describe [the] abstract method” and thus transform the abstract idea into patentable subject matter. Ultramercial, 772 F.3d at 715. We look to see whether there are any “additional features” in the claims that constitute an “inventive concept,” thereby rendering the claims eligible for patenting even if they are directed to an abstract idea. Alice, 134 S.Ct. at 2357. Those “additional features” must be more than “well-understood, routine, conventional activity.” Mayo, 132 S.Ct. at 1298; Ultramercial, 772 F.3d at 715. Upon examining claim 1 and the specification of the ’379 patent, we find no “inventive concept” that transforms the abstract idea of out-of-region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a. graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough. As the Supreme Court stated in Alice, “generic computer implementation” is insufficient to transform a patent-ineligible abstract idea into a patent-eligible invention. Alice, 134 S.Ct. at 2352, 2357. More generally," }, { "docid": "9099719", "title": "", "text": "T1X1.5 working group. For similar reasons, the Court concludes that the defendants have failed to show that Dr. Gorshe must be regarded as the inventor of the \"transition indicator.\" The patent has therefore not been shown to be invalid under 35 U.S.C. § 102(f), for failure to name Dr. Gorshe as an inventor. Accordingly, the defendants' motion for summary judgment of invalidity under sections 102(a) and 102(f) is DENIED. B. Invalidity Under Section 101 The defendants have moved for summary judgment invalidating all the asserted claims of the '405 patent as patent ineligible under 35 U.S.C. § 101. The defendants contend that the claims of the '405 patent fail to satisfy the eligibility requirement of section 101 because they are directed to an abstract idea and lack an inventive concept. Dkt. No. 180. Because the encoding procedure claimed in the '405 patent effectively reduces the bandwidth of certain communications without sacrificing the content of the communicated information, Sycamore argues that the invention solves a technical problem in the computer networking field in an inventive manner, rather than simply claiming an abstract idea as the patentable invention. See Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016) (holding an invention patentable if claims are \"directed to an improvement in computer functionality\" or \"solve a technology-based problem, even with conventional, generic components, combined in an unconventional manner\"). For that reason, Sycamore contends that the defendants are not entitled to summary judgment of patent ineligibility with respect to the asserted claims of the '405 patent. As articulated by the Supreme Court, the analysis of patent eligibility under section 101 entails two steps. Step one requires the Court to \"determine whether the claims at issue are directed to a patent-ineligible concept\" such as an abstract idea. Alice Corp. Pty. v. CLS Bank Int'l, --- U.S. ----, 134 S.Ct. 2347, 2355, 189 L.Ed.2d 296 (2014). If so, the Court proceeds to step two, which requires the Court \"to consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature" }, { "docid": "14188468", "title": "", "text": "light given the posture of this motion. Accordingly, armed with the requisite understanding of the nature and character of the ’698 patent, it is appropriate to proceed immediately to step two. C. Alice Step Two At step two, courts “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 134 S.Ct. at 2357 (quoting Mayo, 132 S.Ct. at 1294, 1298). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 132 S.Ct. at 1297). Those “additional features” must be more than “well-understood, routine, conventional activities].” Mayo, 132 S.Ct. at 1298. Courts “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice, 134 S.Ct. at 2355 (quoting Mayo, 132 S.Ct. at 1298, 1297). Here, the ’698 patent lacks an inventive concept sufficient to transform the abstract idea into a patent-eligible application. Greenflight concedes it did not create or improve the preexisting caller name databases. Oral Arg. Tr. 11:14-16. Nor did it invent the SS7 technology used to query those databases, Oral Arg. Tr. 11:25-12:3, or the methods of looking up information on the internet referenced in the claim language, see id. 12:12-13, 13:7. Instead, the “invention,” to Greenflight, is a new “mechanism to access” the preexisting information, id. 11:18-20, i.e., using “HTML web or mobile phone application^]” to “bridge” the gap between users and CNAM databases. See id. 13:1-7. The problem is that this new solution or “bridge” reduces to use of the internet, and that plainly cannot provide the requisite inventive concept. Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348-49, 2016 WL 3514158, at *5 (Fed.Cir.2016) (“An abstract idea on an Internet computer network or on a generic computer is still an abstract idea.” (internal quotation marks omitted)); Ul-tramercial, 772 F.3d at 716 (“[T]he use of the Internet" }, { "docid": "20895376", "title": "", "text": "of the particular ■ analysis that is best suited to the specific facts at issue in a case, however, the Federal Circuit has emphasized that “a substantial class of claims are not directed to a patent-ineligible concept,” and thus “the first step of the [Alice] inquiry is a meaningful one.” Enfish, 822 F.3d at 1335, 2016 WL 2756255 at *4 (emphasis in original). The court’s task is thus not to determine whether claims merely involve an abstract idea at some level, see id., but rather to examine the claims “in their entirety to ascertain whether their character as a whole is directed to excluded subject matter.” Internet Patents Corp., 790 F.3d at 1346. 3. Alice Step Two—Evaluation of Abstract Claims for a Limiting Inventive Concept A claim drawn to an abstract idea is not necessarily invalid if the claim’s limitations—considered individually or as an ordered combination—serve to “transform the claims into a patent-eligible application.” Content Extraction, 776 F.3d at 1348. Thus, the second step of the Alice analysis (the search for an “inventive con cept”) asks whether the claim contains an element or combination of ¡ elements that ensures that the patent in practice amounts.to significantly more than a patent upon the abstract idea itself. Alice, 134 S.Ct. at 2355. The U.S. Supreme Court has made clear that a transformation of an abstract idea to a patent-eligible application of the idea requires more than simply reciting the idea followed by “apply it.” Id. at 2357 (quoting Mayo, 132 S.Ct. at 1294). In that regard, the Federal Circuit has repeatedly held that “[f]or the role of a computer in a computer-implemented invention to be deemed meaningful in the context of this analysis, it must involve more than the performance of ‘well-understood, routine, [and] conventional activities previously known to the industry.’ ” Content Extraction, 776 F.3d at 1347-48 (quoting Alice, 134 S.Ct. at 2359) (alterations in original); see also Mortgage Grader, 811 F.3d at 1324-25 (holding that “generic computer components such as an ‘interface,’ ‘network,’ and ‘database’... do not satisfy the inventive concept requirement.”); Bancorp Servs., 687 F.3d at 1278 (“To salvage" }, { "docid": "9275817", "title": "", "text": "was not critical or necessary to the final judgment. We therefore conclude that issue preclusion does not apply in this case, not because there was a change in law as the district court held, but because the issue of patent eligibility under § 101 was not actually litigated and it was not necessary to the judgment rendered. III. Patent Eligibility under § 101 Because issue preclusion does not apply here, we turn to the merits of the § 101 issue. Patent eligibility under § 101\"is ultimately an issue of law we review de novo .\" Berkheimer v. HP Inc. , 881 F.3d 1360, 1365 (Fed. Cir. 2018) (italics added). Patent eligibility can be determined at the Rule 12(b)(6) stage \"when there are no factual allegations that, taken as true, prevent resolving the eligibility question as a matter of law.\" Aatrix Software, Inc. v. Green Shades Software, Inc. , 882 F.3d 1121, 1125 (Fed. Cir. 2018). Under § 101, \"[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.\" 35 U.S.C. § 101. Under the two-step framework, we first \"determine whether the claims at issue are directed to a patent-ineligible concept.\" Alice , 134 S.Ct. at 2355. If so, then we \"examine the elements of the claim to determine whether it contains an 'inventive concept' sufficient to 'transform' the claimed abstract idea into a patent-eligible application.\" Id. at 2357 (quoting Mayo , 566 U.S. at 72-73, 78, 132 S.Ct. 1289 ). Voter Verified argues that the claims of the '449 patent are directed to patent-eligible subject matter because the specification and claims describe \"physical\" and \"human cognitive actions,\" which are not abstract ideas. Appellant's Br. 11. And at step two of the framework, Voter Verified contends that the district court incorrectly found that only generic computer components were required because a voter performs some of the claimed steps as well. In response, Election Systems argues that the claims are directed to the abstract idea of" }, { "docid": "9282554", "title": "", "text": "cannot make those laws, phenomena, and ideas patentable.\" Mayo Collaborative Servs., 566 U.S. at 82, 132 S.Ct. 1289. B. Alice Step 2: Inventive Concept Whether considering the claim elements of representative claim 18 individually or as an ordered combination, nothing in the claim converts the abstract idea to an inventive concept. It is well-settled that placing an abstract idea in the context of a computer does not \"improve\" the computer or convert the idea into a patent-eligible application of that idea. See Alice , 134 S.Ct. at 2358. Furthermore, the claims do not recite any arguably inventive method of how the secondary information is displayed, such as what portion of the screen is utilized or how the primary activity on the screen is monitored. That is, while the specification and claims of the '652 patent purport to describe an improved user experience which allows the presentation of an additional set of information, the patent is wholly devoid of details which describe how this is accomplished. See , e.g. , Synopsys, Inc. v. Mentor Graphics Corp. , 839 F.3d 1138, 1151 (Fed. Cir. 2016) (\"[A] claim for a new abstract idea is still an abstract idea.\") (emphasis in original). The patent does not describe how the preexisting screen background is altered to enable the display of the second set of information, nor does it describe how the second set of information is segregated from the primary set of information. Interval Licensing re-raises its claimed instructions in the form of an alleged inventive concept. But, for the reasons we have already given supra , the instructions are recited at a high level of generality and conventional, and are not the kinds of limitations we have held to \"solve a technology-based problem, even with conventional, generic components, combined in an unconventional manner.\" Amdocs (Israel) Ltd. v. Openet Telecom, Inc. , 841 F.3d 1288, 1300 (Fed. Cir. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 469, 199 L.Ed.2d 356 (2017) ; see also Ultramercial , 772 F.3d at 716 (\"Adding routine additional steps such as updating an activity log, requiring a request from" }, { "docid": "20895409", "title": "", "text": "tool in determining whether the claim as a whole is directed to an abstract idea. See, e.g., Mortgage Grader, 811 F.3d at 1324; cf. CyberSource, 654 F.3d at 1373. Here, the asserted claims’ reflection oí generic, and conventional, computerization of processes previously performed by humans without computers confirms the Court’s conclusion that the asserted claims are directed to patent-ineligible abstract ideas. For the reasons stated above, the Court concludes that each of the asserted claims is directed to a patent-ineligible abstract idea. See Alice, 134 S.Ct. at 2355. B. Alice Step Two—Whether the Asserted Claims Contain an “Inventive Concept” Sufficient to Confer Patent Eligibility Having determined that the asserted claims are directed to patent-ineligible abstract ideas, the Court proceeds to the second step of the Alice framework to determine whether the claim’s limitations—considered individually or as an ordered combination—serve to “transform the claims into a patent-eligible application.” Content Extraction, 776 F.3d at 1348. Here, the Court concludes that the asserted claims’ limitations, considered both individually and as a whole, include no such transformation or inventive concept sufficient to ensure that the claims in practice amount to significantly more than a patent upon the abstract idea itself. See Alice, 134 S.Ct. at 2355. When viewed as an ordered combination, the claim limitations of the asserted claims specify steps at a high level of generality using generic software in order to carry out the abstract idea of (1) using a simulator to determine whether a memory test violates a set of rules and (2) using a packer to optimize that test. The U.S. Supreme Court in Alice explained that these types of claim limitations—which consist of little more than reciting the idea followed by “apply it”—are insufficient to salvage a claim directed to an abstract idea. Alice, 134 S.Ct. at 2357 (quoting Mayo, 132 S.Ct. at 1290); see also Dealertrack, 674 F.3d at 1333 (rejecting argument that use of a computer sufficiently limited the claims where the patent “[did] not specify how the computer hardware and database are specially programmed to perform the steps claimed in the patent”) (quotation marks omitted). Plaintiffs" }, { "docid": "9099720", "title": "", "text": "rather than simply claiming an abstract idea as the patentable invention. See Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300 (Fed. Cir. 2016) (holding an invention patentable if claims are \"directed to an improvement in computer functionality\" or \"solve a technology-based problem, even with conventional, generic components, combined in an unconventional manner\"). For that reason, Sycamore contends that the defendants are not entitled to summary judgment of patent ineligibility with respect to the asserted claims of the '405 patent. As articulated by the Supreme Court, the analysis of patent eligibility under section 101 entails two steps. Step one requires the Court to \"determine whether the claims at issue are directed to a patent-ineligible concept\" such as an abstract idea. Alice Corp. Pty. v. CLS Bank Int'l, --- U.S. ----, 134 S.Ct. 2347, 2355, 189 L.Ed.2d 296 (2014). If so, the Court proceeds to step two, which requires the Court \"to consider the elements of each claim both individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application.\" Id. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78-79, 132 S.Ct. 1289, 182 L.Ed.2d 321 (2012) ). In that step, the Court searches \"for an 'inventive concept'-i.e., an element or combination of elements that is 'sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.' \" Id. (alteration in original) (quoting Mayo, 566 U.S. at 72-73, 132 S.Ct. 1289 ). In arguing that the '405 patent is not directed to a patent-ineligible concept, Sycamore points out that the patent identifies a problem that arose in the conversion of information from one computer signal protocol to another. The patent, according to Sycamore, teaches a concrete technical solution that reduces the number of bits required to transmit a particular communication across those different protocols without losing any portion of the communication. Moreover, even assuming the patent is regarded as being directed to an abstract idea, such as merely encoding and decoding data, Sycamore argues that the" }, { "docid": "23440462", "title": "", "text": "U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972); H.R. Rep. No. 82-1923, at 6 (1952)). Courts may therefore dispose of patent-infringement claims under § 101 whenever procedurally appropriate. See DDR, 773 F.3d at 1263; Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1351 (Fed. Cir. 2014), cert. denied, — U.S.-, 136 S.Ct. 119, 193 L.Ed.2d 208 (2015). In Mayo, the Supreme Court set forth a two-step analytical framework to identify patents that, in essence, claim nothing more than abstract ideas. The court must first “determine whether the claims at issue are directed to a patent-ineligible concept.” Alice, 134 S.Ct. at 2355. If so, the court must then “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S.Ct. at 1298, 1297). We have found software-related patents eligible under both steps of the test Alice sets out. We found a patent to a particular improvement to a database system patent-eligible under step one in Enfish LLC v. Microsoft Corp., 822 F.3d 1327, 1339-40, 2016 WL 2756255, at *8 (Fed. Cir. May 12, 2016). There, we found claim language reciting the invention’s specific improvements to help our determination in step one of the Alice framework that the invention was directed to those specific improvements in computer technology. But we also recognized that, “in other cases involving computer-related claims, there may be close calls about how to characterize what the claims are directed to.” Id. “In such cases,” we noted, “an analysis of whether there are arguably concrete improvements in the recited computer technology could take place under step two.” Id. That is, some inventions’ basic thrust might more easily be understood as directed to an abstract idea, but under step two of the Alice analysis, it might become clear that the specific improvements in the recited computer technology go beyond “well-understood, routine, conventional activities]” and render the invention patent-eligible. See Alice, 134 S.Ct. at 2359. We took this step-two path in DDR," }, { "docid": "9256932", "title": "", "text": "(quoting Alice, 134 S.Ct. at 2359 ). \"Simply appending conventional steps, specified at a high level of generality, [is] not enough to supply an inventive concepe\" Alice, 134 S.Ct. at 2357 (internal quotation marks omitted). However, \"[t]he inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art.\" Bascom, 827 F.3d at 1350. In Bascom, the Federal Circuit held that \"the limitations of the claims, taken individually, recite generic computer, network and Internet components, none of which is inventive by itself,\" but nonetheless determined that an ordered combination of these limitations was patent-eligible under step two. Id. at 1349. The Federal Circuit has looked to the claims as well as the specification in performing the \"inventive concept\" inquiry. See Affinity Labs of Texas, LLC v. Amazon.com Inc. , 838 F.3d 1266, 1271 (Fed. Cir. 2016) (\"[N)either the claim nor the specification reveals any concrete way of employing a customized user interface.\"). The Federal Circuit recently elaborated on the step two standard, stating that \"[t]he question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact. Any fact, such as this one, that is pertinent to the invalidity conclusion must be proven by clear and convincing evidence.\" Berkheimer, 881 F.3d at 1368 ; see also Aatrix Software, Inc. v. Green Shades Software, Inc. , 882 F.3d 1121, 1128 (Fed. Cir. 2018) (\"While the ultimate determination of eligibility under § 101 is a question of law, like many legal questions, there can be subsidiary fact questions which must be resolved en route to the ultimate legal determination.\"); Automated Tracking Sols., LLC v. Coca-Cola Co. , 723 Fed. Appx. 989, 995 (Fed. Cir. 2018) (\"We have held that 'whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact.' \") (quoting Berkheimer, 881 F.3d at 1368 ). \"Whether a particular technology is well-understood routine, and conventional goes beyond what was simply known in the" } ]

[ { "docid": "930265", "title": "", "text": "is a police department and the visibility of the Black patrolman in the community is a decided advantage for all segments of the public at a time when racial divisiveness is plaguing law enforcement. Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, supra, 482 F. 2d at 1341; see Carter v. Gallagher, supra, 452 F.2d at 331. In conclusion we would note that this extraordinary remedy is not without its limitations. The use of quota relief in employment discrimination cases is bottomed on the chancellor’s duty to eradicate the continuing effects of past unlawful practices. By mandating the hiring of those who have been the object of discrimination, quota relief promptly operates to change the outward and visible signs of yesterday’s racial distinctions and thus, to provide an impetus to the process of dismantling the barriers, psychological or otherwise, erected by past practices. It is,a temporary remedy that seeks to spend itself as promptly as it can by creating a climate in which objective, neutral employment criteria can successfully operate to select public employees solely on the basis of job-related merit. For once an environment where merit can prevail exists, equality of access satisfies the demand of the Constitution. We again caveat that quota relief does not seek to confer proportional representation in public employment upon any minority or identifiable ethnic group, and that no individual or group has a right to be represented in any particular public program or body. The Constitution only warrants the right of equal availability to and even-handed dispensation of public benefits. Traditional concepts of comity and judicial restraint must also guide the discretion which chooses to use the drastic remedy of quota hiring. It is a form of relief which should be reserved for those situations in which less restrictive means have failed or in which the chancellor could reasonably foresee that they would fail. It was in this context that the Morrow court stated: The duration of the affirmative hiring relief shall be determined by the District Court. When it is convinced that the measures undertaken by the Patrol effectively offset the effects" } ]

[ { "docid": "22265644", "title": "", "text": "superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. 608 F.2d at 695-96. Accord Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Stotts, 679 F.2d at 553; NAACP v. Allen, 493 F.2d 614, 621 (5th Cir.1974); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1341 (2d Cir.1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 896-97 (C.D.Cal.1976) III. In the present case, the Final Decree is attacked on two grounds. It is argued first that the number of promotions granted minorities is excessive. It is next argued that the decree mandates the promotion of unqualified individuals. See Stotts, 679 F.2d at 553. For the reasons which follow, each of these contentions is without merit. The number of promotions called for in the decree is a reasonable, yet conservative response to the stark exclusion of minorities from meaningful participation in the Youngstown Police Department. In 1976, minorities represented over twenty-five percent of Youngstown’s population, but less than eight percent of the city’s police force. Virtually all of the minority policemen held the lowest rank in the department; they were patrolmen. On the day the action was filed the highest ranking Black was merely a sergeant. Moreover, no minority had been promoted in the police department for well over a dozen years, Given these employment practices, the affirmative provisions of the Final Decree are a very conservative response to the gross under-utilization of minorities. As this Court stated in Stotts, specific race-con-seious hiring and promotion goals may be appropriate elements of consent decrees where the under-utilization of minorities is particularly great. See, e.g., Vulcan Society of Westchester City v. Fire Department of the City of White Plains, 505 F.Supp. 955 (S.D.N.Y.1981) (temporary fifty percent hiring ratio reasonable where minority representation in population is sixteen percent and workforce representation is only four percent); Dennison v. City of Los Angeles Department" }, { "docid": "8059223", "title": "", "text": "the officials’ motive for promoting, for the first time in the history of the city, a black officer to the rank of major. The reason they expressed was not a pretext to cloak invidious discrimination against Talbert. Application of the criteria prescribed by Arlington Heights to the facts disclosed by this record establishes that invidious discriminatory purpose was not a motivating factor in the decision to promote Miller. Like the prosecutor in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the city officials legitimately took race into account, on an individualized basis, to achieve a legitimate end. Cf. Bakke, 438 U.S. 319 n.53, 98 S.Ct. 2763 n.53. It was not unlawful for them, as the officials responsible for the operation of the police department, to consider Miller’s race in order to have both white and black officers in the department’s upper ranks. In Detroit Police Officers’ Ass'n v. Young, 608 F.2d 671, 695-96 (6th Cir. 1979), Judge Lively addressed this aspect of the operational needs of an urban police department serving a multi-racial population. After canvassing studies and expert opinion concerning this subject, Judge Lively thoughtfully concluded: The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. In summary, the attainment of racial diversity in the top ranks of the police department was a legitimate interest of the city. This interest justified the officials’ individualized consideration of Miller’s race together with all other relevant factors. Their action was not a pretext to cloak invidious discrimination against Talbert. In the words of Arlington Heights, Talbert has “failed to carry [his] burden of proving that discriminatory purpose was a motivating factor [in the city’s act.] This conclusion" }, { "docid": "22265643", "title": "", "text": "3145, 57 L.Ed.2d 1161 (1978). A decree which requires that individual considerations of race be an important factor in personnel decisions may also serve the public interest. Several courts have emphasized that the attainment of racial diversity, particularly in supervisory ranks, is a legitimate interest an employer may pursue. Such diversity will, in the long run, enhance public confidence and productivity as employees recognize that their efforts will be rewarded. The rewards of attaining racial diversity in the workplace are particularly great where the employer is a governmental entity. In Detroit Police Officers Ass’n, supra, Judge Lively, speaking for the Court, explained the benefits of a multi-racial urban police department thusly: The argument that police need more minority officers is not simply that blacks communicate better with blacks, or that a police department should eater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support .and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. 608 F.2d at 695-96. Accord Talbert v. City of Richmond, 648 F.2d 925, 929 (4th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); Stotts, 679 F.2d at 553; NAACP v. Allen, 493 F.2d 614, 621 (5th Cir.1974); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1341 (2d Cir.1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 896-97 (C.D.Cal.1976) III. In the present case, the Final Decree is attacked on two grounds. It is argued first that the number of promotions granted minorities is excessive. It is next argued that the decree mandates the promotion of unqualified individuals. See Stotts, 679 F.2d at 553. For the reasons which follow, each of these contentions is without merit. The number of promotions called for in the decree is a reasonable, yet conservative response to the stark" }, { "docid": "8182186", "title": "", "text": "now rely on such compliance as a justification for its promotion policy. Nor does the City contend that the consent order should be continued into the indefinite future. Therefore, for purposes of our review, the City’s actions are viewed as voluntary affirmative action efforts. The City also does not rely on a showing that it was undertaking efforts to remedy the present effects of prior discrimination, which in certain circumstances has been recognized as a sufficient justification for the use of affirmative action measures. See Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (plurality opinion). Lastly, the City does not assert that the past under-representation of minorities within the department justifies its consideration of race in the 1991 promotions of officers to sergeant. While at the time of the 1974 litigation no African-American officer held the rank of sergeant, it is undisputed that at the time of trial over 20% of the sergeants in the department are African-American. . The same “operational needs for diversity” justification was argued before the Supreme Court in United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987), a case challenging a policy requiring that 50% of promotions from state trooper to corporal be allocated to African-Americans. The Supreme Court did not address the contention because the judicial determination of prior discriminatory policies and conduct satisfied the first prong of the strict scrutiny test. Id. at 167 n. 18, 107 S.Ct. at 1064 n. 18 (plurality opinion) (“We need not decide if either the generalized governmental interest in effective law enforcement or the more particularized need to overcome any impediments to law enforcement created by perceptions arising from the egregious discriminatory conduct of the Department is compelling.”). In Talbert v. City of Richmond, 648 F.2d 925, 928 (4th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982), the City of Richmond did not rely on prior discrimination to justify its conduct but asserted that it considered race in the promotion process in order to advance the \"operational needs of the police department by achieving diversity among" }, { "docid": "22265635", "title": "", "text": "23 (1st Cir.1980); City of Miami, 614 F.2d at 1331-34; Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). The ultimate issue the court must decide at the conclusion of the hearing is whether the decree is fair, adequate and reasonable. Id. The Court has no occasion to determine the merits of the controversy or the factual underpinning of the legal authorities advanced by the parties. See Carson, 450 U.S. at 88 n. 14, 101 S.Ct. at 998 n. 14; Stotts, 679 F.2d at 552; Jackson, 519 F.2d at 1151-52. If the court determines that the decree is problematic, it should inform the parties of its precise concerns and give them an opportunity to reach a reasonable accommodation. See Stotts, 679 F.2d at 554; Miami, 614 F.2d at 1332. The court should articulate its “principled reasons” for rejecting a decree if the accommodation is not satisfactory. See Stotts, 679 F.2d at 554; Miami, 614 F.2d at 1333. In making the reasonableness determination the court is under the mandatory duty to consider the fairness of the decree to those affected, the adequacy of the settlement to the class, and the public interest. The decree must be fair and reasonable to those it affects. See Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964. A consent decree may not embody affirmative relief provisions unless the employer has utilized minorities at a rate less than their proportion in the relevant labor market. See Stotts, 679 F.2d at 552; United Steelworkers v. Weber, 443 U.S. 193, 203, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979). This identifiable statistical disparity, however, need not be so great as to constitute a prima facie case of discrimination. See Stotts, 679 F.2d at 552 n. 10; Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981). The decree must be temporary in nature and terminate when the under-utilization of minorities has been corrected. See Stotts, 679 F.2d at 553. Valentine v. Smith, 654 F.2d 503, 510-11 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); Detroit Police Officers" }, { "docid": "23144527", "title": "", "text": "need to improve the community’s perception of police. He viewed affirmative action as a tool needed to change an image of the police among black Detroit residents as part of the white establishment with little interest in their problems. The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. It is therefore apparent that the district court misconstrued this justification for affirmative action, and that the justification offered by defendants is a substantial one. C. The 50/50 Promotion Ratio Because the district court focused on other issues, the record is incomplete with respect to the propriety of the 50/50 promotional ratio adopted by the Department. The test to be applied is whether the voluntarily adopted ratio is reasonable. The reasonableness test includes a determination whether the affirmative action plan is “substantially related” to the objectives of remediation of prior discrimination and improved law enforcement. Bakke, supra 438 U.S. at 359, 98 S.Ct. 2733. A racial preference plan is reasonable when it provides an effective remedy for past discrimination without unnecessarily trammeling the interests of white candidates for promotion. Weber, supra, - U.S. at -, 99 S.Ct. 2721. The reasonableness test has been applied by the federal courts on review of quotas ordered by trial courts. See, e. g., Tullio, supra, 493 F.2d at 374-75; Carter v. Gallagher, 452 F.2d 315, 330-31 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972); see also United States v. Chicago, supra, 549 F.2d at 436-37 (abuse of discretion standard). On remand, the district court must consider the factors enumerated in Weber, supra. It must consider the urgency of effectuating the state’s objectives, practical limitations in doing" }, { "docid": "2565492", "title": "", "text": "and civil service status. We conclude that the only statute violated was the Model Cities Act, for which the remedy is simply the conferring of civil service status. We therefore vacate in part and remand. Facts The Housing Police began providing security for the City’s public housing projects on a full-scale basis after 1970, when federal funds for such employment were received under the Model Cities Act by the Bridgeport Housing Authority, which administers the City’s seven public housing projects. The Housing Police expanded to 52 members in 1974, the last year in which any officers were hired; the force currently has 27 members, all of whom are Black or Hispanic. The Bridgeport Police Department numbers 400 officers. In 1975 the examination administered by the City for employment as police officer was successfully challenged as a discrimination against minorities, and quota hiring was ordered. Bridgeport Guardians v. Members of the Bridgeport Civil Service Commission, 354 F.Supp. 785 (D.Conn.), aff’d in part and rev’d in part, 482 F.2d 1333 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975). As a result of that litigation, and two subsequent selection tests, minority representation on the force has risen from 3 percent to 13 percent. Virtually all the Housing Police members who are plaintiffsappellees in this case took the subsequent examinations but did not achieve a passing score. However, ten former members of the Housing Police passed the exams and have been appointed to the Police Department. The constitutionality of these examinations is not challenged in this lawsuit. Funding for the Housing Police came primarily from the Model Cities Act, which expired in 1975. At that time, the City assumed responsibility for financing the Housing Police for one year but thereafter refused to continue that funding for budgetary reasons. The Housing Police were then funded as CETA participants, supplemented by City funds received under the “block grant” provisions of the Community Development Act (CDA), 42 U.S.C. § 5301 et seq. (1976). Appellees’ eligibility for CETA financing expired at the end of 1979. They have continued to receive their" }, { "docid": "23552938", "title": "", "text": "promotional opportunities, discriminatory job assignments, and harassment by fellow workers. Minority group hostility to police and fire departments also deters recruitment, and this has not been overcome by the departments. U. S. Commission on Civil Rights, “For all the people . . . By all the people,” 119-120 (1969). The House Report on the 1972 amendments to Title VII, H.Rep.No. 92-238, reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 2137, 2153 noted specifically the acuteness of the problem of discrimination in law enforcement because of the visibility of this activity to the minority community. Numerous police and fire departments have been found to have engaged in unlawful discrimination. See, e. g., Detroit Police Officers’ Association v. Young, 608 F.2d 671 at 686 (6th Cir. 1979); Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979) (East Chicago, Indiana Fire Department); Firefighters Institute v. City of St. Louis, Mo., 588 F.2d 235 (8th Cir. 1978), cert. denied, 443 U.S. 904, 99 S.Ct. 3096, 61 L.Ed.2d 872 (1979); Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977) vacated and remanded as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975) (Boston Fire Department); NAACP v. Allen, 493 F.2d 614 (5th Cir. 1974) (Alabama Highway Patrol); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974) (Mississippi Highway Patrol); Vulcan Society of N.Y. City Fire Dept., Inc. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973) (Bridgeport, Connecticut Police Department); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) (en banc) (Minneapolis Fire Department); Commonwealth of Pennsylvania v. Flaherty, 404 F.Supp. 1022 (W.D.Pa.1975) (Pittsburgh Police Department); Western Addition Community Organization v. Alioto, 369 F.Supp. 77 (N.D.Cal.1973), appeal dismissed as moot, 514 F.2d 542 (9th Cir.), cert. denied, 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385 (1975) (San" }, { "docid": "13343556", "title": "", "text": "reducing the passing score to 6. III. Defendants have violated Title VII by failing properly to recruit minority applicants, thus perpetuating the deterrent effect of pre-Act discrimination. Rogers v. International Paper Co., 510 F.2d 1340, 1345 (8th Cir.), vacated and remanded on other grounds 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, modified 526 F.2d 722 (8th Cir. 1975); United States v. Sheet Metal Workers Local 36, supra, 416 F.2d at 137-40; United States v. Central Motor Lines, Inc., supra, 338 F.Supp. at 558. See Bridgeport Guardians v. Members of Bridgeport Civil Service Commission, 482 F.2d 1333, 1340 (2d Cir.), on remand on other grounds Civil No. B-457 (D.Conn. Oct. 3, 1973), aff’d 497 F.2d 1113 (2d Cir. 1974), cert. denied 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975). Primary reliance on word-of-mouth recruitment is unlawful under the circumstances present here. United States v. Georgia Power Co., 474 F.2d 906, 925-26 (5th Cir. 1973). See also Franks v. Bowman Transportation Co., 495 F.2d 398, 418-19 (5th Cir. 1974), reversed on other grounds, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Stamps v. Detroit Edison Co., 365 F.Supp. 87, 117 (E.D.Mich.1973), aff’d in relevant part 515 F.2d 301 (6th Cir. 1975), vacated and remanded on other grounds 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267 (1977). Defendants also have violated Title VII by engaging in isolated acts of discrimination against individual applicants for firefighters’ positions. See International Brotherhood of Teamsters v. United States, supra, 431 U.S. at 338 n. 19, 97 S.Ct. 1843. Finally, defendants have violated Title VII by hiring firefighters since March 24, 1972 from lists generated by examinations that had disparate impacts on black and hispanic persons and were not job related. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). Twenty-eight firefighters were hired in 1972 from a list generated by a 1971 exam. This post-Act hiring of firefighters violated Title VII even though the 1971 exam was administered before the Act became applicable to the City. Guardians Association of New York City Police Department," }, { "docid": "22265645", "title": "", "text": "exclusion of minorities from meaningful participation in the Youngstown Police Department. In 1976, minorities represented over twenty-five percent of Youngstown’s population, but less than eight percent of the city’s police force. Virtually all of the minority policemen held the lowest rank in the department; they were patrolmen. On the day the action was filed the highest ranking Black was merely a sergeant. Moreover, no minority had been promoted in the police department for well over a dozen years, Given these employment practices, the affirmative provisions of the Final Decree are a very conservative response to the gross under-utilization of minorities. As this Court stated in Stotts, specific race-con-seious hiring and promotion goals may be appropriate elements of consent decrees where the under-utilization of minorities is particularly great. See, e.g., Vulcan Society of Westchester City v. Fire Department of the City of White Plains, 505 F.Supp. 955 (S.D.N.Y.1981) (temporary fifty percent hiring ratio reasonable where minority representation in population is sixteen percent and workforce representation is only four percent); Dennison v. City of Los Angeles Department of Water and Power, 658 F.2d 694, 695 (9th Cir.1981) (a decree which awards fifty percent of all hiring and promotion opportunities to qualified minorities is reasonable); Baker v. City of Detroit, 504 F.Supp. 841 (E.D.Mich.1980) (fifty percent promotion ratio is reasonable). Moreover, arguments that the final decree mandates the promotion of “unqualified persons” is based on a faulty premise. Since the promotion examinations the City has administered are presumptively discriminatory and not job-related, see 29 C.F.R. § 2697.4(D), they can hardly be probative evidence that the minorities who failed are any less “qualified” than the non-minorities who passed, All policemen have a legitimate expectation to be promoted on the basis of their qualifications. Correspondingly, the City bas a resPonsibility to promote only qualified, candidates. Ranking candidates ac-cording to their performance on a non-job related examination does not necessarily result *n ^be ®electi°n of qualified candidates, See Guardian's Ass'n. of New York v. Civil Service, 630 F.2d 79, 100 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981). Ranking is" }, { "docid": "23355427", "title": "", "text": "possibility of success on the merits, whether the plaintiff or defendant would suffer irreparable harm and whether the public interest warrants the injunction. See, e.g., Mason County Medical Assoc, v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). The standard of appellate review is whether the district court abused its discretion in granting the preliminary injunction. United States v. School District of Ferndale, 577 F.2d 1339, 1360 (6th Cir. 1978), on remand, 460 F.Supp. 352, vacated, 616 F.2d 895 (6th Cir. 1980), on remand, 499 F.Supp. 367 (E.D.Mich.1980). Judge McRae did not abuse his discretion in granting the preliminary injunction. First, the statistics denoting the racial composition, hiring and promotion practices of the Fire Department adequately indicate the probability of plaintiff’s success on the merits. Moreover, the entry of the 1980 Decree constituted a “determination of probability of success on the merits.” Culbreath v. Dukakis, 630 F.2d 15, 23 (1st Cir. 1980). Second, the proposed layoffs would irreparably harm minorities by preventing them from acquiring the experience necessary for supervisory positions. Finally, the injunction serves the public interest by not allowing unexpected events to eradicate the progress made pursuant to an affirmative action plan. Brown, supra. Racial diversity in the supervisory ranks of municipal government serving an urban multi-racial city is, as Judge Lively noted in Detroit Police Officers Assoc., desirable and in the public interest. See Talbert v. Richmond, 648 F.2d 925, 931 (4th Cir. 1981). IV. MODIFICATION OF A CONSENT DECREE There are three grounds upon which a consent decree may later be modified. First, a decree may be modified in accordance with basic contract principles. Brown, 644 F.2d at 559-560. Moreover, Rule 60(b) provides relief from a consent decree upon a showing that the decree is void or is no longer equitable. Fed.R.Civ.P. 60(b)(4), (5). See EEOC v. Safeway Stores, Inc., 611 F.2d 795, 799 (10th Cir. 1979), cert. denied sub nom., Courtwright v. EEOC, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 809 (1980); Brown, 644 F.2d at 560 n.17; Philadelphia Welfare Rights Org’n. v. Shapp, 602 F.2d 1114, 1120-21 (3d Cir. 1979), cert. denied sub" }, { "docid": "22265642", "title": "", "text": "race, color, religion, sex, or national origin.... Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974), quoted in Carson v. American Brands, Inc., 450 U.S. 79, 88 n. 14, 101 S.Ct. 993, 998 n. 14, 67 L.Ed.2d 59 (1980). See also Ford Motor Co. v. Equal Employment Opportunity Commission, 458 U.S. 219, 102 S.Ct. 3057, 3064, 73 L.Ed.2d 721 (1982). Decisions emphasizing the preferred role of settlements under Title VII are legion. E.g., Detroit Police Officers Ass’n, 608 F.2d at 690; Stotts, 679 F.2d at 554; Trucking Employers, 561 F.2d at 317; Patterson, 514 F.2d at 771; Flinn, 528 F.2d at 1174; City of Miami, 614 F.2d at 1324; Equal Employment Opportunity Commission v. Safeway Stores, 611 F.2d 795, 799 (10th Cir.1979); Moore, 615 F.2d at 1271; Airline Stewards & Stewardesses Ass’n, 573 F.2d at 964; Equal Employment Opportunity Commission v. American Telephone & Telegraph Co., 556 F.2d 167 (3d Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3145, 57 L.Ed.2d 1161 (1978). A decree which requires that individual considerations of race be an important factor in personnel decisions may also serve the public interest. Several courts have emphasized that the attainment of racial diversity, particularly in supervisory ranks, is a legitimate interest an employer may pursue. Such diversity will, in the long run, enhance public confidence and productivity as employees recognize that their efforts will be rewarded. The rewards of attaining racial diversity in the workplace are particularly great where the employer is a governmental entity. In Detroit Police Officers Ass’n, supra, Judge Lively, speaking for the Court, explained the benefits of a multi-racial urban police department thusly: The argument that police need more minority officers is not simply that blacks communicate better with blacks, or that a police department should eater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support .and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the" }, { "docid": "8059224", "title": "", "text": "serving a multi-racial population. After canvassing studies and expert opinion concerning this subject, Judge Lively thoughtfully concluded: The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. In summary, the attainment of racial diversity in the top ranks of the police department was a legitimate interest of the city. This interest justified the officials’ individualized consideration of Miller’s race together with all other relevant factors. Their action was not a pretext to cloak invidious discrimination against Talbert. In the words of Arlington Heights, Talbert has “failed to carry [his] burden of proving that discriminatory purpose was a motivating factor [in the city’s act.] This conclusion ends the constitutional inquiry.” 429 U.S. at 270-71, 97 S.Ct. at 566. The judgment of the district court is reversed, and the case is remanded for entry of judgment for the appellants. REVERSED AND REMANDED. . Two candidates were listed at the number six spot on the eligibility list since they had received identical scores from the personnel assessment center. Therefore no candidate was listed as number seven. Also, the Chief testified that in referring to the “City’s Affirmative Action Plan” he meant the “City’s Equal Opportunity Plan;” the city had no affirmative action plan. . The consultant testified that “the original task which we were given by the City of Richmond was to develop a procedure which would qualify individuals for an eligible list,” and that although the test could be used to differentiate among candidates “to some degree,” this was not its major purpose. He indicated his understanding that the assessment center score was not used by the city as the sole basis for making promotions, and he stated that his company would" }, { "docid": "23144526", "title": "", "text": "these studies and with the view widely accepted in law enforcement that a police force must reflect the makeup of the community it serves. Former Police Commissioner John F. Nichols testified to a keen awareness of “the community requirement and the socio-political reality that ra- quired a higher percentage of black officers to be made a part of the Department.” Chief of Police William H. Hart testified that this need involves the trust between a community and its police force and that representativeness is essential to citizen cooperation and crime prevention. He also stated that the need is much deeper than a perception that persons of the same race communicate better with each other than with someone from a different racial group. James Bannon, Executive Deputy Chief with 28 years of experience on the force and a doctoral degree in sociology, also testified. In addition to his testimony regarding historical discriminatory treatment of black officers in Detroit, he cited both the need for more black officers to perform specialized tasks such as surveillance and the need to improve the community’s perception of police. He viewed affirmative action as a tool needed to change an image of the police among black Detroit residents as part of the white establishment with little interest in their problems. The argument that police need more minority officers is not simply that blacks communicate better with blacks or that a police department should cater to the public’s desires. Rather, it is that effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public’s perception of law enforcement officials and institutions. It is therefore apparent that the district court misconstrued this justification for affirmative action, and that the justification offered by defendants is a substantial one. C. The 50/50 Promotion Ratio Because the district court focused on other issues, the record is incomplete with respect to the propriety of the 50/50 promotional ratio adopted by the Department." }, { "docid": "18266139", "title": "", "text": "a consent decree between the Government and the Fire Department, no other appointments to uniformed positions have been made since June 1974. While a discrepancy between the minority community population and the population employed by defendants may not of itself be sufficient to establish a prima facie case of discrimination it, at least, invites further inquiry. See Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, 482 F.2d 1333, 1335 n. 4 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975). Here the evidence indicates a substantial disparity between the general black, SSA, and female population in the City of Buffalo and the representation of those groups in the work force of the Police and Fire Departments. The defendants have introduced a number of documents (Def. Ex. 2-3) to substantiate their efforts to recruit minority applicants for qualifying examinations, including those for the police cadet and community peace officer positions. Without ruling on whether this statistical evidence alone is sufficient to establish a prima facie case, I find that it gives a strong indication of discriminatory impact which requires further inquiry as follows. II. WRITTEN EXAMINATIONS The Government argues that both the Police and Fire Departments have made use of written examinations in their job selection process which have had a discriminatory impact upon black and SSA candidates for positions. The examinations in question which were prepared by the New York State Department of Civil Service and administered by the Buffalo Civil Service are the 1973 patrolman examination (965-C), and the 1973 firefighter examination (966-B). The 1971 police cadet examination (965-B) will also require consideration. A. DISPROPORTIONATE IMPACT The plaintiffs may make a statistical showing of disproportionate passing rates to establish a prima facie case of discrimination. Cf. Teamsters, supra. Such a comparative study of the pass-fail ratios of different racial and ethnic groups has been found to establish a prima facie case of discrimination in a number of instances. See Chance v. Board of Examiners, 458 F.2d 1167 (2d Cir. 1972); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Comm’n, supra. A racially disproportionate impact" }, { "docid": "22428035", "title": "", "text": "promotional goals in the consent decree, relying on Title VII and the Fourteenth Amendment to the Constitution. The attack appears to be concentrated on the use of percentage goals or targets per se, although their appropriateness and reasonableness in this particular case are also questioned. 1. Per Se Attack At this point in the history of the fight against discrimination, it cannot be seriously argued that there is any insurmountable barrier to the use of goals or quotas to eradicate the effects of past discrimination. See Detroit Police Officers’ Association v. Young, 608 F.2d 671 (6th Cir. 1979); Davis v. County of Los Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated as moot, 440 U.S. 625, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979); United States v. City of Chicago, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977); Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Rios v. Enterprise Association Steamfitters Local 638, 501 F.2d 622 (2d Cir. 1974); United States v. Masonry Contractors Association of Memphis, Inc., 497 F.2d 871 (6th Cir. 1974); Franks v. Bowman Transp. Co., 495 F.2d 398 (5th Cir. 1974), modified, 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); Vulcan Society v. Civil Service Commission of the City of New York, 490 F.2d 387 (2d Cir. 1973); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir. 1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), cert. denied, 421 U.S. 991, 95 S.Ct. 1997, 44 L.Ed.2d 481 (1975); United States v. N. L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973); Pennsylvania v. O’Neill, 473 F.2d 1029 (3d Cir. 1973) (en banc) (per curiam); United States v. Local Union No. 212, 472 F.2d 634 (6th Cir." }, { "docid": "18848704", "title": "", "text": "1978; promotions of officers hired on the basis of previous hiring processes are irrelevant to this question. The police department filled fifty positions on the basis of the hiring procedure that included the disputed February, 1978 exam. If the 1978 hiring process were analyzed as the plaintiffs urge, the proportion of Blacks hired would drop and the proportion of Whites would rise, but in neither case by a significant percentage. Since the seven part-time police officers promoted without administration of the 1978 exam were all White, 37 of 57 positions (64.9%) were held by Whites, and 14 of 57 (24.6%) by Blacks. Of the 11 full-time positions filled on the basis of the 1978 hiring procedure, 6 were filled by Blacks and 4 by Whites; in addition, 7 White part-time officers were promoted to full-time positions, as explained above. The 39 part-time positions were filled by 8 Blacks and 26 Whites (and 5 Spanish-surnamed applicants). Currently, 14 of the 39 part-time officers are working full-time, including 3 Blacks and 8 Whites. . According to an affidavit submitted by the defendants, calculations based on 1970 census information show that the New Haven population between the ages of 18 and 64 is approximately 22% Black. The affiant has not calculated the percentage of Whites in the same population. . Statistics comparing the percentage of minority hires with the minority percentage of the population in a relevant geographical area can establish a prima facie case of discrimination. Green v. Missouri Pacific Railroad, 523 F.2d 1290 (8th Cir. 1975); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 891 (C.D.Cal.1976); cf. Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333, 1335 n. 4 (2d Cir. 1973). . The claim of discrimination in Smith was made on constitutional grounds; claims based on Title VII were “[n]oteworthily absent.” Smith v. Troyan, 520 F.2d 492, 493 n. 3 (6th Cir. 1975). The Court correctly recognized that the requirements imposed by Title VII might differ from those of the Equal Protection Clause, ibid.; see Washington v. Davis, 426 U.S. 229, 96" }, { "docid": "13770037", "title": "", "text": "an organization of Black police officers known as the Bridgeport Guardians, Inc., and three individual Black police officers, sued the City of Bridgeport and its Police Commissioners in the United States District Court for the District of Connecticut, alleging racial discrimination and free speech violations within the Bridgeport Police Department (Department). See Bridgeport Guardians, Inc. v. Delmonte, 553 F.Supp. 601, 604 (D.Conn.1982). The Department had already been the target of a number of discrimination suits resulting in federal court orders going back to 1972. See Bridgeport Guardians, Inc. v. Members of Bridgeport Civil Serv. Comm’n, 354 F.Supp. 778, 782, 798-800 & n. 16 (D.Conn.1973) (enjoining use of patrolman’s examination found to have adverse impact on Black and Puerto Rican candidates, and imposing hiring and promotion quotas to remedy past discrimination), aff'd in part and rev’d in part, 482 F.2d 1333 (2d Cir.1973) (holding promotion quotas unwarranted but affirming in all other respects), modified order aff'd, 497 F.2d 1113 (2d Cir.1974); Bridgeport Guardians v. Bridgeport Police Dep’t, 431 F.Supp. 931, 941 (D.Conn.1977) (rejecting challenge to Department’s detective examination, but noting that the “distressing absence of minority group members from the supervisory ranks of the [Department] should be a cause for continuing concern by responsible officials”). While the previous suits had focused on the disparate impact of the Department’s hiring and promotion procedures, the plaintiffs in the 1978 suit claimed the Department was intentionally discriminating against Black and Hispanic police officers, and then retaliating against those who complained about the violation of their constitutional rights. See Delmonte, 553 F.Supp. at 607-18. The district court agreed, holding defendants’ actions violated Titles VI and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the First Amendment of the U.S. Constitution. Delmonte, 553 F.Supp. at 607-18. It specifically found a pattern of intentional discrimination in (1) the way the Department assigned police officers to its internal divisions, geographic areas, and individual partners, (2) the way the Department carried out disciplinary procedures, and (3) the overall environment in which police officers were forced to work. Id. It found Black police" }, { "docid": "22265636", "title": "", "text": "decree to those affected, the adequacy of the settlement to the class, and the public interest. The decree must be fair and reasonable to those it affects. See Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964. A consent decree may not embody affirmative relief provisions unless the employer has utilized minorities at a rate less than their proportion in the relevant labor market. See Stotts, 679 F.2d at 552; United Steelworkers v. Weber, 443 U.S. 193, 203, 99 S.Ct. 2721, 2727, 61 L.Ed.2d 480 (1979). This identifiable statistical disparity, however, need not be so great as to constitute a prima facie case of discrimination. See Stotts, 679 F.2d at 552 n. 10; Setser v. Novack Investment Co., 657 F.2d 962, 968 (8th Cir.1981). The decree must be temporary in nature and terminate when the under-utilization of minorities has been corrected. See Stotts, 679 F.2d at 553. Valentine v. Smith, 654 F.2d 503, 510-11 (8th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 972, 71 L.Ed.2d 111 (1981); Detroit Police Officers Ass’n, 608 F.2d 671 at 694-98 (6th Cir.1979); Setser, 657 F.2d at 968-69. The decree also cannot bar absolutely the advancement of qualified persons, or require the discharge of non-minority workers and the replacement with minorities. Id. Affirmative provisions which seek “the same racial proportion among employees as in the labor force will ordinarily be reasonable.” See Detroit Police Officers Ass’n, 608 F.2d at 696; Stotts, 679 F.2d at 553. A simple reduction in non-minority “expectations” does not necessarily make a consent decree unfair and unreasonable. The affirmative relief provisions of any consent decree will undoubtedly diminish the expectation of non-minorities. Non-minority expectations are based on the employer’s pre-decree employment practices which have caused the under-utilization of minorities the decree is designed to correct. See Stotts, 679 F.2d at 556. Therefore, it is impossible not to adversely affect non-minority expectations and simultaneously correct the under-utilization of minorities. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n. 20, 97 S.Ct. 1843, 1856 n. 20, 52 L.Ed.2d 396 (1977), the Supreme Court stated" }, { "docid": "18848686", "title": "", "text": "percentage of the total number of police officers hired (50) is 28%, a figure roughly comparable to the 26% Black percentage in the New Haven population, according to the 1970 census. See Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 354 F.Supp. 778, 785 (D.Conn.), aff’d in part, 482 F.2d 1333 (2d Cir. 1973) Thus, the precise issue in this case is whether the plaintiffs can make the required prima facie showing in their Title VII case by claiming the disproportionate impact of a written exam that forms one part of a hiring process, when the defendants show that the total hiring process resulted in no disproportionate impact according to comparisons of racial hiring percentages against either total applicants or general population. In other words, are the plaintiffs entitled to penetrate the total hiring process and challenge a particular component, the written exam? Of the few courts that have considered the issue, the majority have held that the selection process as a whole, rather than any segment of it, should be examined for disproportionate impact in a Title VII case. Friend v. Leidinger, 588 F.2d 61, 66 (4th Cir. 1978), aff’g 446 F.Supp. 361 (E.D.Va.1977); Rule v. Ironworkers Local 396, 568 F.2d 558, 565 n. 10 (8th Cir. 1977); Smith v. Troyan, 520 F.2d 492, 497-98 (6th Cir. 1975); Lee v. City of Richmond, 456 F.Supp. 756, 771 (E.D.Va.1978); cf. Kirkland v. New York State Department of Correctional Services, 374 F.Supp. 1361, 1370 (S.D.N.Y.1974), aff’d in relevant part, 520 F.2d 420, 425 (2d Cir. 1975) (showing that overall examination procedure has disparate results cannot be rebutted by fragmenting process and showing no disparate results in separate parts); Vulcan Society of New York City Fire Department, Inc. v. Civil Service Commission, 360 F.Supp. 1265, 1272 (S.D.N.Y.), aff’d, 490 F.2d 387 (2d Cir. 1973) (same). Contra, Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1372-73 (5th Cir. 1974); League of United Latin American Citizens v. City of Santa Ana, 410 F.Supp. 873, 894-95 (C.D.Cal.1976). The plaintiffs distinguish Smith v. Troyan, supra, by pointing out that the written exam there was" } ]

[ { "docid": "18941222", "title": "", "text": "appeals officer who has had no prior involvement in the taxpayer’s case * * * [and] If the taxpayer demands a hearing within that [prescribed] period, the proposed collection action may not proceed until the hearing has concluded and the appeals officer has issued his or her determination.” Id. at 68, 1998-3 C.B. at 604 (emphasis added); see also H. Conf. Rept. 105-599, at 265 (1998), 1998-3 C.B. 747, 1019 (similar language). 3. CDP Hearing Allowed as a Matter of Right Section 6330(a) provides unambiguously that taxpayers have a “right to a [CDP] hearing under this section before such levy is made”. (Emphasis added.) Although the majority recognize that Appeals did not honor petitioners’ request for a face-to-face CDP hearing, the majority hold that petitioners are not entitled to participate (let alone face to face with an Appeals officer) in such a hearing. The majority acknowledge that petitioners’ request for the hearing was proper. Yet, the majority deny petitioners their legislatively mandated right to meet with Appeals in a CDP hearing because, they find, the petition fails to set forth any position that this Court considers meritorious. The majority conclude without a citation to authority that Appeals need not hold the hearing because “We do not believe that it is either necessary or productive”. Majority op. p. 189. The majority misapply relevant statutory text in that their opinion conflicts directly with the explicit requirements of section 6330(a) (taxpayers have a “right to a hearing”) and of section 6330(b)(1) (“If the person requests a hearing under subsection (a)(3)(B), such hearing shall be held by the Internal Revenue Service Office of Appeals”. (Emphasis added.)). Although the majority may be holding sub silentio that the Court can waive this legislatively mandated right in certain cases, I know of no grant of authority that would allow the Court do so under the facts at hand, especially seeing that Chief Counsel has advised Appeals that it “must” hold a face-to-face CDP hearing with any taxpayer who requests one. See the advisory; cf. Kennedy v. Commissioner, 116 T.C. 255, 262 (2001), wherein the Court noted that" } ]

[ { "docid": "18941221", "title": "", "text": "of new taxpayers’ rights. Its enactment followed a year of congressional investigations and hearings over the future of the IRS, resulting in highly publicized criticisms of the agency’s collection methods. Mesa Oil, Inc. v. United States, 86 AFTR 2d 2000-7312, 2001-1 USTC par. 50130 (D. Colo. 2000). The Senate Finance Committee believed that the addition of section 6330 would afford to taxpayers in dealing with the IRS rights which were similar to the rights afforded to all persons in dealing with any other creditor. Id. at 67, 1998-3 C.B. at 603. To this end, the committee declared, the Commissioner would by virtue of section 6330 need henceforth to “afford taxpayers adequate notice of collection activity and a meaningful hearing before the IRS deprives them of their property.” Id. The committee designed these procedures “to afford taxpayers due process in collections” by the IRS and believed that these procedures would “increase fairness to taxpayers.” Id. The committee averred emphatically as to a proposed levy that a “taxpayer may demand a hearing to take place before an appeals officer who has had no prior involvement in the taxpayer’s case * * * [and] If the taxpayer demands a hearing within that [prescribed] period, the proposed collection action may not proceed until the hearing has concluded and the appeals officer has issued his or her determination.” Id. at 68, 1998-3 C.B. at 604 (emphasis added); see also H. Conf. Rept. 105-599, at 265 (1998), 1998-3 C.B. 747, 1019 (similar language). 3. CDP Hearing Allowed as a Matter of Right Section 6330(a) provides unambiguously that taxpayers have a “right to a [CDP] hearing under this section before such levy is made”. (Emphasis added.) Although the majority recognize that Appeals did not honor petitioners’ request for a face-to-face CDP hearing, the majority hold that petitioners are not entitled to participate (let alone face to face with an Appeals officer) in such a hearing. The majority acknowledge that petitioners’ request for the hearing was proper. Yet, the majority deny petitioners their legislatively mandated right to meet with Appeals in a CDP hearing because, they find, the" }, { "docid": "17119153", "title": "", "text": "date described in clause (i)(I). See sec. 301.6330-1(0(2), Proced. & Admin. Regs. This regulation provides: Q-F2. With respect to the relief available to the taxpayer under section 6015, what is the time frame within which a taxpayer may seek Tax Court review of Appeals’ determination following a CDP hearing? A-F2. If the taxpayer seeks Tax Court review not only of Appeals’ denial of relief under section 6015, but also of relief with respect to other issues raised in the CDP hearing, the taxpayer should request Tax Court review within the 30-day period commencing the day after the date of the Notice of Determination. If the taxpayer only seeks Tax Court review of Appeals’ denial of relief under section 6015, the taxpayer should request review by the Tax Court, as provided by section 6015(e), within 90 days of Appeals’ determination. If a request for Tax Court review is filed after the 30-day period for seeking judicial review under section 6330, then only the taxpayer’s section 6015 claims may be reviewable by the Tax Court. Sec. 6015(b) provides: SEC. 6015(b). Procedures for Relief From Liability Applicable to All Joint Filers.— (1) In general. — Under procedures prescribed by the Secretary, if— (A) a joint return has been made for a taxable year; (B) on such return there is an understatement of tax attributable to erroneous items of 1 individual filing the joint return; (C) the other individual filing the joint return establishes that in signing the return he or she did not know, and had no reason to know, that there was such an understatement; (D) taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for the deficiency in tax for such taxable year attributable to such understatement; and (E) the other individual elects (in such form as the Secretary may prescribe) the benefits of this subsection not later than the date which is 2 years after the date the Secretary has begun collection activities with respect to the individual making the election, then the other person shall be relieved of the liability for" }, { "docid": "2340764", "title": "", "text": "against an unknown and unexpected tax liability,” proposed replacing the joint and several tax liability standard with a proportional liability standard. ABA Section of Taxation Domestic Relations Committee, Comments on Liability of Divorced Spouses for Tax Deficiencies on Previously Filed Joint Returns, 50 Tax Law. 395, 402 (1997). In response, Congress directed the GAO and the Department of the Treasury to study the innocent spouse relief provisions and to evaluate the ABA proposal. After evaluating the responses, Congress engaged in innocent spouse taxpayer reform by repealing the prior provisions altogether and enacting the current innocent spouse laws, codified at 26 U.S.C. § 6015, IRS Restructuring and Reform Act of 1998, Pub.L. No. 105-206, § 3201(b), 112 Stat. 685, 734-40. Under § 6015, the IRS may grant taxpayers relief from joint lia bility in three contexts. Sections 6015(b) and (c) apply when taxpayers have demonstrated an “understatement” or “deficiency” on joint returns filed with the IRS. In non-deficiency cases, “where a spouse asks for relief on her own initiative, and not in response to a deficiency action or moves by the IRS to collect a tax debt,” relief is available through § 6015(f), which provides for equitable relief where there is an underpayment of tax on a correct return. As originally enacted, § 6015(e)(1) allowed taxpayers denied relief by the IRS under subsections (b) or (c) to petition the Tax Court for relief. In Ewing v. Commissioner, 118 T.C. 494 (2002), the Tax Court concluded that § 6015(e)(1) granted it jurisdiction over non-deficiency cases brought under § 6015(f) as well. We reversed the Tax Court’s assertion of jurisdiction over § 6015(f) petitions in Ewing v. Commissioner, 439 F.3d 1009 (9th Cir. 2006), after finding that the plain language of the statute precluded this interpretation. Congress thereafter amended § 6015(e) to expressly grant the Tax Court jurisdiction to review petitions for equitable relief under § 6015(f) that have been denied by the IRS, like the petition at issue here. Tax Relief and Health Care Act of 2006, Pub.L. No. 109-432, div. C, § 408, 120 Stat. 2920, 3061-62. In implementing the innocent" }, { "docid": "11587820", "title": "", "text": "a district court if the taxpayer disagrees with the Notice of Determination? A-F5. In seeking Tax Court or district court review of Appeals’ Notice of Determination, the taxpayer can only request that the court consider an issue that was raised in the taxpayer’s CDP hearing. Consistent with the Pension Protection Act of 2006, Pub. L. 109-280, sec. 855(a), 120 Stat. 1019, giving the Tax Court exclusive jurisdiction over both sec. 6320 and sec. 6330 collection cases, the above regulations have been updated and the language of former Q&A-F5 has been moved to Q&A-F3. Current sec. 301.6320-1(0(2), Q&A-F3, and sec. 301.6330-1(0(2), Q&A-F3, Proced. & Admin. Regs., contain identical language, as follows: Q-F3. What issue or issues may the taxpayer raise before the Tax Court if the taxpayer disagrees with the Notice of Determination? A-F3. In seeking Tax Court review of a Notice of Determination, the taxpayer can only ask the court to consider an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer’s CDP hearing. An issue is not properly raised if the taxpayer fails to request consideration of the issue by Appeals, or if consideration is requested but the taxpayer fails to present to Appeals any evidence with respect to that issue after being given a reasonable opportunity to present such evidence. The election can be made not later than 2 years after respondent has begun collection activity. Sec. 6015(b)(1)(E), (c)(3)(B). A notice of intent to levy is considered the initiation of a collection activity. Sec. 1.6015-5(b), Income Tax Regs. The Court’s authority to enjoin a levy is provided in sec. 6015(e)(l)(B)(ii). Vasquez, J., dissenting: As pointed out by Judge Swift, in Davis v. Commissioner, 115 T.C. 35, 41-42 (2000), we created the informal setting and procedures for section 6330 hearings. Subsequent jurisprudence has rendered the holding of Davis obsolete and has eviscerated the Court’s section 6330 review function. The current state of section 6330 jurisprudence leaves us with two equally unpalatable choices: (1) Overrule Davis and require the IRS to conduct more formal hearings in order to create a record sufficient for" }, { "docid": "2340765", "title": "", "text": "action or moves by the IRS to collect a tax debt,” relief is available through § 6015(f), which provides for equitable relief where there is an underpayment of tax on a correct return. As originally enacted, § 6015(e)(1) allowed taxpayers denied relief by the IRS under subsections (b) or (c) to petition the Tax Court for relief. In Ewing v. Commissioner, 118 T.C. 494 (2002), the Tax Court concluded that § 6015(e)(1) granted it jurisdiction over non-deficiency cases brought under § 6015(f) as well. We reversed the Tax Court’s assertion of jurisdiction over § 6015(f) petitions in Ewing v. Commissioner, 439 F.3d 1009 (9th Cir. 2006), after finding that the plain language of the statute precluded this interpretation. Congress thereafter amended § 6015(e) to expressly grant the Tax Court jurisdiction to review petitions for equitable relief under § 6015(f) that have been denied by the IRS, like the petition at issue here. Tax Relief and Health Care Act of 2006, Pub.L. No. 109-432, div. C, § 408, 120 Stat. 2920, 3061-62. In implementing the innocent spouse tax relief enacted by Congress, the Depart ment of the Treasury promulgated a regulation establishing the factors to be utilized in analyzing requests for equitable relief. The IRS established a single processing site in Cincinnati, Ohio to handle the claims, known as “The Commissioner’s Cincinnati Centralized Innocent Spouse Operation” (“CCCISO”). CCCISO staff screen innocent spouse tax relief requests to determine whether they meet basic eligibility requirements. Applications that do not meet the requirements are closed at screening, and the taxpayer is informed of the decision. If a claim meets basic eligibility requirements, the file is transferred to an examiner to further review the claim and decide whether relief should be granted. When a decision is made, the taxpayer is informed and given thirty days to appeal to the IRS’s Office of Appeals. After the administrative appeal is decided, the IRS sends a final determination letter. The taxpayer then has the right to appeal the IRS decision to federal court. The taxpayer has the option of either petitioning the U.S. Tax Court for review, or" }, { "docid": "17182785", "title": "", "text": "to record his meeting. I would reach the same result in Kemper as Judge Chiechi, but I would arrive there by a different path. Gale and Marvel, JJ., agree with this concurring opinion. See Lunsford v. Commissioner, 117 T.C. 159, 170-171 (2001) (Halpern, J., concurring). Vasquez, J., concurring: I agree with the majority opinion; however, I write separately to address two additional points. 1. We Are Not Invalidating the Regulations The majority opinion does not invalidate section 301.6320-1(d)(2) or 301.6330-l(d)(2), Q&A-D6, Proced. & Admin. Regs. Contra J. Swift’s dissenting op. pp. 28-29. In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., Q-D6 asks: “How are CDP hearings conducted?” In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., A-D6 answers, in pertinent part: CDP hearings are much like Collection Appeal Program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer’s representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer’s representative, or some combination thereof. A transcript or recording of any face-to-face meeting or conversation between an Appeals officer or employee and the taxpayer or the taxpayer’s representative is not required. * * * The “is not required” language contained in the regulations means that the actions described therein are permissible but not mandatory. The regulations first provide that a face-to-face meeting is not required. This, however, does not prohibit face-to-face meetings — many section 6330 hearings are face-to-face meetings. The regulations simply provide that it is not mandatory that a section 6330 hearing be a face-to-face meeting. Likewise, the regulations do not prohibit recording or transcription of any face-to-face meeting or conversation; they merely provide that a recording or transcription of the section 6330 hearing is'/ioi required. In other words, recording or transcription of the section 6330 hearing is not mandatory; however, it is permissible. Furthermore, allowing taxpayers to record the hearing does not" }, { "docid": "18941214", "title": "", "text": "the taxpayer in the Davis case. Mr. Roberts was disbarred from practice before this Court on June 18, 2001, and was removed as petitioners’ counsel on July 18, 2001. See also Watson v. Commissioner, T.C. Memo. 2001-213; Serv. Engg. Trust u. Commissioner, T.C. Memo. 2001-181. HALPERN, J., concurring: I concur with the result reached by the majority. In my concurring report in Lunsford v. Commissioner, 117 T.C. 159, 169 (2001), I have offered some comments concerning our authority to dictate to respondent the nature of the hearing required by section 6330(b). I incorporate those comments herein by this reference. Whalen, Beghe, and Thornton, JJ., agree with this concurring opinion. Colvin, J., dissenting: I voted yes in Lunsford v. Commissioner, 117 T.C. 159 (2001), because I believe our jurisdiction in that case is provided by the notice of determination. However, I dissent here because I believe the fact that we have jurisdiction does not relieve respondent of the duty to provide an opportunity for a hearing as required by section 6330(b). Because we have jurisdiction, if we had required respondent to provide an opportunity to petitioner to have a hearing, we could have then concluded the case by using whatever procedure is appropriate (e.g., a trial or dispositive motion) without requiring the taxpayer to file a new petition. Gale, J., agrees with this dissenting opinion. Laro, J., dissenting: I respectfully disagree with the opinions adopted by the majority and agree with the dissenting views of Judge Foley. I write separately in this important case to stress the importance of an appeal to a higher court. I also write to stress what I consider to be the legislative mandate that taxpayers must be afforded face-to-face collec tion due process (CDP) hearings upon all proper requests. The U.S. Department of Justice, the Internal Revenue Service (IRS) Office of Chief Counsel (Chief Counsel), and the IRS Office of Appeals (Appeals) have concluded that all taxpayers possess such a right and that this right may not be denied. See Chief Counsel Advisory 200123060 (June 8, 2001) (the advisory). But for the majority, no one who" }, { "docid": "17119146", "title": "", "text": "the motion. Discussion Petitioner alleges that she signed a blank form, she did not fill out the tax return, and she did not earn the income listed on the tax return. Petitioner filed the petition to request relief from liability under section 6015 for tax due on the income listed on her tax return that she allegedly did not earn. The issues presented are: (1) Whether the petition was timely filed for this Court to have jurisdiction; and (2) whether a taxpayer must file a joint return to be eligible for relief under section 6015. I. Jurisdiction It is well settled that this Court can proceed in a case only if we have jurisdiction and that any party, or the Court sua sponte, can question jurisdiction at any time, even after the case has been tried and briefed. Neely v. Commissioner, 115 T.C. 287, 290 (2000); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Normac, Inc. v. Commissioner, 90 T.C. 142, 146-147 (1988); Brown v. Commissioner, 78 T.C. 215, 218 (1982). Our jurisdiction under section 6330(d)(1) depends on the issuance of a valid notice of determination and a timely petition for review. Lunsford v. Commissioner, 117 T.C. 159, 165 (2001). Section 6330(d)(1) provides that a person may appeal a notice of determination by filing a petition within 30 days of the notice. Sec. 6330(d)(1). We lack jurisdiction to review petitioner’s claim under section 6330. Petitioner filed a petition with this Court later than 30 days after the notice of determination. We have held that the 30-day period provided by section 6330(d)(1) is jurisdictional and cannot be extended. McCune v. Commissioner, 115 T.C. 114, 117 (2000). However, petitioner raised a spousal defense in the Appeals Office proceeding before the Commissioner made a final determination. Sec. 6330(c)(2)(A)(i); sec. 301.6330-1(e)(2), Proced. & Admin. Regs. In the notice of determination, respondent determined that petitioner was not entitled to relief under section 6015 because she did not file a joint return. The timeliness of the petition, insofar as it seeks review of the administrative denial of section 6015 relief, is, therefore, dependent upon section 6015(e)(1)." }, { "docid": "16881022", "title": "", "text": "POSNER, Circuit Judge. Taxpayers filing a joint return are jointly and severally liable for the entire tax liability shown or that should have been shown on their return. 26 U.S.C. § 6013(d)(3). But section 6015 of the Internal Revenue Code sets forth grounds— “innocent spouse” rules first added to the Code in 1971 and liberalized since, Lily Kahng, “Innocent Spouses: A Critique of the New Tax Laws Governing Joint and Several Tax Liability,” 49 Vill. L.Rev. 261, 264-70 (2004); Svetlana G. Attestatova, Comment, “The Bonds of Joint Tax Liability Should Not Be Stronger Than Marriage: Congressional Intent Behind § 6015(c) Separation of Liability Relief,” 78 Wash. L. Rev. 831, 831-41 (2003) — for relieving the signer of a joint return of his or her joint and several liability for understatement or nonpayment of income tax due. Section 6015(f), captioned “equitable relief,” provides that “under procedures prescribed by the [Department of the Treasury], if (1) taking into account all the facts and circumstances, it is inequitable to hold the individual liable for any unpaid tax or any deficiency ...; and (2) relief is not available to such individual under subsection (b) or (c) [of section 6015], the [Department] may relieve such individual of such liability.” By regulation the Treasury has fixed a deadline for filing claims under subsection (f) of two years from the IRS’s first action to collect the tax by (for example) issuing a notice of intent to levy on the taxpayer’s property. 26 C.F.R. § 1.6015 — 5(b)(1); see also IRS Rev. Proc. 2003-61 § 4.01(3); 26 U.S.C. § 6630(a). The Tax Court in a divided opinion invalidated the deadline in the regulation and the Internal Revenue Service appeals. The taxpayer, Cathy Lantz, is a financially unsophisticated woman whose husband, a dentist, was arrested for Medicare fraud in 2000, convicted, and imprisoned. They had been married for only six years when he was arrested and there is no suggestion that she was aware of, let alone complicit in, his fraud. The IRS learned that the joint return the couple had filed had understated their federal income tax liability" }, { "docid": "17119152", "title": "", "text": "interest for that year. Petitioner sent her petition to the Tax Court 34 days after respondent mailed her the notice of determination. Sec. 6015(e)(1) provides, in pertinent part: SEC. 6015(e). Petition for Review by Tax Court.— (1) In general. — In the case of an individual against whom a deficiency has been asserted and who elects to have subsection (b) or (c) apply— (A) In general. — In addition to any other remedy provided by law, the individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed— (i) at any time after the earlier of— (I) the date the Secretary mails, by certified or registered mail to the taxpayer’s last known address, notice of the Secretary’s final determination of relief available to the individual, or (II) the date which is 6 months after the date such election is filed with the Secretary, and (ii) not later than the close of the 90th day after the date described in clause (i)(I). See sec. 301.6330-1(0(2), Proced. & Admin. Regs. This regulation provides: Q-F2. With respect to the relief available to the taxpayer under section 6015, what is the time frame within which a taxpayer may seek Tax Court review of Appeals’ determination following a CDP hearing? A-F2. If the taxpayer seeks Tax Court review not only of Appeals’ denial of relief under section 6015, but also of relief with respect to other issues raised in the CDP hearing, the taxpayer should request Tax Court review within the 30-day period commencing the day after the date of the Notice of Determination. If the taxpayer only seeks Tax Court review of Appeals’ denial of relief under section 6015, the taxpayer should request review by the Tax Court, as provided by section 6015(e), within 90 days of Appeals’ determination. If a request for Tax Court review is filed after the 30-day period for seeking judicial review under section 6330, then only the taxpayer’s section 6015 claims may be reviewable by the Tax Court. Sec. 6015(b)" }, { "docid": "11178837", "title": "", "text": "Tax Court does not mean it exempted the Tax Court only as to tax matters extant in 1946. We are persuaded by the Tax Court’s reasoning. Congress’s use of the word “determine” and not “appeal” in § 6015(e)’s jurisdictional grant is significant. And, most importantly, § 6015(e) must be read and considered with the other § 6015 provisions, such as § 6015(e)(4) outlining intervention by the non-requesting spouse and § 6015(e)(l)(A)(i)(II) authorizing a petition to the Tax Court if the Commissioner has not acted in six months. Congress also enacted § 6015 with knowledge of the Tax Court’s precedent and history of conducting trials de novo in making its determinations. As the Tax Court noted, § 6015 was enacted “as part and parcel of,” and with similar language to, the statutory framework for the Tax Court’s review of deficiency determinations, which determinations had been made using trials de novo long before the passage of the APA. The legislative history of the APA contains a clear intent to exempt the Tax Court. At a minimum, the Commissioner has not shown the Tax Court erred in its Ewing and Porter rulings that it followed in this case. We recognize that the Commissioner does cite the Eighth Circuit’s decision in Robinette v. Commissioner, 439 F.3d 455, 461 (8th Cir.2006), rev’g 123 T.C. 85, 2004 WL 1616381 (2004), but that decision, if anything, helps Neal. Robinette involved a claim under § 6330 — not § 6015(e) and (f). Section 6330 affords taxpayers notice and a right to a hearing before the IRS can levy on and sell a taxpayer’s property for unpaid taxes. 26 U.S.C. § 6330. If the taxpayer requests a hearing, an employee or officer in the IRS Office of Appeals who had no prior involvement with the unpaid tax hears the matter and determines whether the requirements of the applicable law or administrative procedure were met as to the unpaid tax. Id. § 6330(b)(1), (3), § 6330(c)(1), (3). This is known as a collection-due-process hearing. Section 6330(c)(3) provides that the “determination by [the] appeals officer” shall take certain listed factors into" }, { "docid": "15789866", "title": "", "text": "liability; (2) the estimated expenses of levy and sale will not exceed the value of the property to be seized; (3) the revenue officer has determined that there is sufficient equity in the property to be seized to yield net proceeds from sale to apply to the unpaid tax liabilities; and (4) with respect to the seizure of the assets of a going business, the revenue officer recommending the collection action has thoroughly considered the facts of the case, including the availability of alternative collection methods, before recommending the collection action. [S. Rept. 105-174, at 68 (1998), 1998-3 C.B. 537, 604. ] Form 4340 simply does not meet each of these verification requirements. Form 4340 was sufficient both here and in Davis because the only irregularity alleged as to the verification requirement concerned the proper assessment. Vasquez and Gale, JJ., agree with this concurring in result opinion. I note in passing, however, that Lunsford II appears to have been sapped of some of its vitality by the Treasury Department’s recent release of final regulations under sec. 6330. The majority in Lunsford II did not require the Office of Appeals (Appeals) to conduct a face-to-face collection due process (CDP) hearing with the taxpayers even though the taxpayers had alleged in their petition that they wanted such a face-to-face hearing and that the absence of a face-to-face hearing deprived them of their right to present their case. Lunsford v. Commissioner, 117 T.C. 183, 191 (2001) (Laro, J., dissenting). Whereas the final regulations under sec. 6330 observe that a CDP hearing need not be held face-to-face, the regulations indicate that the taxpayer may demand that a CDP hearing be scheduled face-to-face. The regulations mandate that a taxpayer who requests a face-to-face CDP hearing “must be offered an opportunity for a hearing at the Appeals office closest to the taxpayer’s residence or, in the case of a business taxpayer, the taxpayer’s principal place of business.” Sec. 301.6330-l(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs. The fact that this quoted text relates solely to the verification requirement of sec. 6330(c)(1) is seen not only by" }, { "docid": "15055772", "title": "", "text": "and Marvel, JJ., agree with this dissenting opinion. Colvin, J., dissenting: Section 6015(c)(3)(C) provides that the separate liability election is not available if the Commissioner proves that the putative innocent spouse “had actual knowledge * * * of any item giving rise to a deficiency”. The majority holds that in omitted income cases: Section 6015(c)(3)(C) does not require actual knowledge on the part of the electing spouse as to whether the entry on the return is or is not correct. [Majority op. p. 195.] I respectfully dissent because the majority’s construction of section 6015(c)(3)(C) squarely conflicts with the legislative history of section 6015(c). I also dissent because the majority fails to discuss Charlton v. Commissioner, 114 T.C. 333 (2000), and relies on Wiksell v. Commissioner, 215 F.3d 1335 (9th Cir. 2000), affg. without published opinion T.C. Memo. 1999-32, which did not present the issue we face here. I. The Phrase “Item Giving Rise to a Deficiency” Is Ambiguous Section 6015(c)(3)(C) provides in pertinent part that If the Secretary demonstrates that an individual making an election under this subsection had actual knowledge, at the time such individual signed the return, of any item giving rise to a deficiency (or portion thereof) which is not allocable to such individual under subsection (d), such election shall not apply to such deficiency (or portion). * * * [Emphasis added.] Thus, section 6015(c) relief is not available if the Commissioner proves that the putative innocent spouse had actual knowledge of any “item giving rise to a deficiency”. That phrase is ambiguous; the “item” of which the putative innocent spouse must have had actual knowledge could be either of two things. First, it might refer to a transaction or activity. If so, then, as respondent contends, see majority op. p. 195, a putative innocent spouse would not qualify for the separate liability election under section 6015(c) if the Commissioner showed that he or she knew that an income-producing transaction or activity had occurred. Alternatively, knowledge of an “item giving rise to a deficiency” might refer to knowledge that an entry on a tax return was incorrect." }, { "docid": "15789867", "title": "", "text": "sec. 6330. The majority in Lunsford II did not require the Office of Appeals (Appeals) to conduct a face-to-face collection due process (CDP) hearing with the taxpayers even though the taxpayers had alleged in their petition that they wanted such a face-to-face hearing and that the absence of a face-to-face hearing deprived them of their right to present their case. Lunsford v. Commissioner, 117 T.C. 183, 191 (2001) (Laro, J., dissenting). Whereas the final regulations under sec. 6330 observe that a CDP hearing need not be held face-to-face, the regulations indicate that the taxpayer may demand that a CDP hearing be scheduled face-to-face. The regulations mandate that a taxpayer who requests a face-to-face CDP hearing “must be offered an opportunity for a hearing at the Appeals office closest to the taxpayer’s residence or, in the case of a business taxpayer, the taxpayer’s principal place of business.” Sec. 301.6330-l(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs. The fact that this quoted text relates solely to the verification requirement of sec. 6330(c)(1) is seen not only by reading the quoted text but by reading the text that appears immediately thereafter. That text, which relates to sec. 6330(c)(2), provides: The taxpayer (or affected third party) is allowed to raise any relevant issue at the hearing. Issues eligible to be raised include (but are not limited to): (1) challenges to the underlying liability as to existence or amount; (2) appropriate spousal defenses; (3) challenges to the appropriateness of collection actions; and (4) collection alternatives, which could include the posting of a bond, substitution of other assets, an installment agreement or an offer-in-compromise. [S. Rept. 105-174, at 68 (1998), 1998-3 C.B. 537, 604.] Foley, J., dissenting: In the Internal Revenue Service Restructuring and Reform Act of 1998 (rra 1998), Pub. L. 105-206, sec. 3401, 112 Stat. 746, Congress enacted sections 6320 and 6330 to provide safeguards for persons subject to collection actions. Sections 6320 and 6330 generally provide that respondent cannot proceed with collection until the taxpayer has been given notice and the opportunity for an Appeals Office hearing. See sec. 6330(a)(1), (b)(1), (e)(1). “In" }, { "docid": "17182798", "title": "", "text": "the taxpayer interview was compelled by legal process or was voluntary. Sec. 7521, unlike APA sec. 555(c), does not differentiate between voluntary and compelled taxpayer interviews. Swift, J., dissenting: I agree with the Lunsford treatment of the taxpayers’ frivolous arguments that is reflected in the Kemper opinion being released simultaneously herewith. Kemper v. Commissioner, T.C. Memo. 2003-195. In Kemper, we conclude, because of the frivolous nature of the taxpayers’ underlying arguments, that the Court need not address the taxpayers’ arguments regarding the recording under section 7521 of collection due process (cdp) Appeals hearings. The same approach should be utilized herein to dispose of Keene’s underlying frivolous arguments to the collection action proposed by respondent. In addition to the grounds set forth herein in Judge Chiechi’s dissenting opinion, as the basis for my dissent I respectfully add the following. The Regulations Q&A-D6 of both sections 301.6320-1(d)(2) and 301.6330-1(d)(2), Proced. & Admin. Regs., provides that in the context of CDP Appeals hearings the IRS is not required to record “any” taxpayer conversation with an Appeals officer. In appropriate cases, the IRS may choose to do so and may permit taxpayers to do so, but, under the regulations, the IRS may not be required in “any” case to record a CDP Appeals hearing, nor is the IRS required to permit taxpayers to do so. Procedure and Administrative regulations sections 301.6320-1(d)(2) and 301.6330-l(d)(2) provide identically as follows: A-D6. The formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. 551 et seq., do not apply to CDP hearings. CDP hearings are much like Collection Appeal Program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer’s representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer’s representative, or some combination thereof. A transcript or recording of any face-to-face meeting or conversation between an Appeals officer or employee and the taxpayer" }, { "docid": "18941223", "title": "", "text": "petition fails to set forth any position that this Court considers meritorious. The majority conclude without a citation to authority that Appeals need not hold the hearing because “We do not believe that it is either necessary or productive”. Majority op. p. 189. The majority misapply relevant statutory text in that their opinion conflicts directly with the explicit requirements of section 6330(a) (taxpayers have a “right to a hearing”) and of section 6330(b)(1) (“If the person requests a hearing under subsection (a)(3)(B), such hearing shall be held by the Internal Revenue Service Office of Appeals”. (Emphasis added.)). Although the majority may be holding sub silentio that the Court can waive this legislatively mandated right in certain cases, I know of no grant of authority that would allow the Court do so under the facts at hand, especially seeing that Chief Counsel has advised Appeals that it “must” hold a face-to-face CDP hearing with any taxpayer who requests one. See the advisory; cf. Kennedy v. Commissioner, 116 T.C. 255, 262 (2001), wherein the Court noted that “sec tion 6330 does not authorize the Commissioner to waive the time restrictions imposed therein.” In fact, respondent has not even asked the Court to consider the right waived in the instant setting. 4. Need for Appeals To Obtain Verification at the Hearing The majority fail to discuss persuasively the fact that petitioners have alleged in paragraph 6(a) of their petition that “The appeals officer took the position that the assessment is valid without verifying that there was in fact an assessment.” Under the statutory scheme, it would appear that petitioners are correct in this assertion. The statute requires explicitly that this verification come “at the hearing”. Sec. 6330(c)(1) (“The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met”. (Emphasis added.)). The legislative history reinforces this result by stating that “jDuring the hearing, the IRS is required to verify that all statutory, regulatory, and administrative requirements for the proposed collection action have been met.” S. Rept. 105-174, supra at 68," }, { "docid": "18941231", "title": "", "text": "of verification and balancing.” (Emphasis added.) Pursuant to the legislative mandate in section 6330(c)(1), “The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.” (Emphasis added.) Pursuant to the legislative mandate of section 6330(c)(3)(C), the Appeals officer must consider “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” The fact that the majority do not give proper regard to the Commissioner’s administrative practice is, to my mind, a mistake. Section 6330 is a relatively new provision, and the Commissioner is obviously looking to the courts for guidance as to the proper rules which he must apply to implement that provision properly. Given the fact that he has announced that he is now providing a CDP hearing to all taxpayers who request one, regardless of their motives, I believe it wrong for the majority to undermine that position by usurpation. Foley and Vasquez, JJ., agree with this dissenting opinion. Respondent’s specific argument on brief is that Appeals need not hold a CDP hearing face to face and that the correspondence between Appeals and petitioners constituted the requisite hearing. Respondent’s brief predates the advisory and is inconsistent with it. While the majority recognize that sec. 6330(a) and (b) provides on its face that taxpayers have a right to a CDP hearing, majority op. p. 183, the majority make no further reference to this “right”. The majority essentially find that petitioners would have made only one argument at their CDP hearing, had one in fact been held. I disagree. In Davis v. Commissioner, 115 T.C. 35 (2000), the taxpayer set forth in the request for a CDP hearing only the argument that the Commissioner’s assessment was invalid for lack of a valid summary record of assessment. At the CDP hearing, the taxpayer advanced two additional arguments for consideration. The majority conveniently omit from their paraphrasing of sec. 6330(c)(1) that the verification must occur “at the hearing”." }, { "docid": "18941230", "title": "", "text": "The advisory was generated when Las Vegas Appeals (L.V. Appeals) informed Chief Counsel that L.V. Appeals intended to no longer schedule a face-to-face or telephone CDP con ference when a taxpayer’s request for a CDP hearing set forth only frivolous or constitutional arguments. The Chief Counsel, upon consultation with the U.S. Department of Justice and Appeals, concluded in the advisory that the intended practice did not satisfy the statutory requirements of section 6330. The Chief Counsel advised Appeals (and Appeals agreed) that it had to conduct a face-to-face CDP hearing with any taxpayer that requested such a hearing, regardless of the matter set forth in the request, that the manner of the hearing should be “informal”, and that the length of the hearing should hinge on the amount of time necessary to discuss “relevant” issues. The advisory declares unequivocally that: “A taxpayer is entitled to a CDP hearing even if he [or she] will raise only frivolous or constitutional arguments because the appeals officer must cover the statutory requirements of sections [sic] 6330(c)(1) and (3)(C) of verification and balancing.” (Emphasis added.) Pursuant to the legislative mandate in section 6330(c)(1), “The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.” (Emphasis added.) Pursuant to the legislative mandate of section 6330(c)(3)(C), the Appeals officer must consider “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” The fact that the majority do not give proper regard to the Commissioner’s administrative practice is, to my mind, a mistake. Section 6330 is a relatively new provision, and the Commissioner is obviously looking to the courts for guidance as to the proper rules which he must apply to implement that provision properly. Given the fact that he has announced that he is now providing a CDP hearing to all taxpayers who request one, regardless of their motives, I believe it wrong for the majority to undermine that position by" }, { "docid": "11178838", "title": "", "text": "Commissioner has not shown the Tax Court erred in its Ewing and Porter rulings that it followed in this case. We recognize that the Commissioner does cite the Eighth Circuit’s decision in Robinette v. Commissioner, 439 F.3d 455, 461 (8th Cir.2006), rev’g 123 T.C. 85, 2004 WL 1616381 (2004), but that decision, if anything, helps Neal. Robinette involved a claim under § 6330 — not § 6015(e) and (f). Section 6330 affords taxpayers notice and a right to a hearing before the IRS can levy on and sell a taxpayer’s property for unpaid taxes. 26 U.S.C. § 6330. If the taxpayer requests a hearing, an employee or officer in the IRS Office of Appeals who had no prior involvement with the unpaid tax hears the matter and determines whether the requirements of the applicable law or administrative procedure were met as to the unpaid tax. Id. § 6330(b)(1), (3), § 6330(c)(1), (3). This is known as a collection-due-process hearing. Section 6330(c)(3) provides that the “determination by [the] appeals officer” shall take certain listed factors into consideration. Id. § 6330(c)(3). Then § 6330(d)(1) provides that the taxpayer, within 30 days of the appeal officer’s “determination,” may “appeal such determination” to the Tax Court. Id. § 6330(d)(1). This “appeal” language in § 6330 is materially different from § 6015(e), which does not use the word “appeal” but instead authorizes the Tax Court to “determine” the appropriate relief. This shows that Congress knows how to use the term “appeal” and that Congress meant something different when it authorized the Tax Court in § 6015(e) “to determine the appropriate relief available” to a taxpayer. Id. § 6015(e). In § 6330(d), Congress chose not to use the word “determine” or some derivation thereof and instead chose to vest the Tax Court with jurisdiction over a taxpayer’s “appeal.” For that reason, Ro-binette’s interpretation of § 6330 does not undercut, and in fact is consistent with, our reading of § 6015. See Porter, 2008 WL 2065189, at *3. For all of these reasons, we agree with Neal that the Commissioner has not shown that the Tax Court" }, { "docid": "17182784", "title": "", "text": "the Appeals Office but attended anyway. Judge Chiechi acknowledges that here (in Keene) we hold that section 7521(a) requires the Appeals Office to allow a taxpayer to record a section 6330 hearing, yet she concludes that it is unnecessary, and would be unproductive, to remand her case for another, recorded hearing. She relies on Lunsford v. Commissioner, 117 T.C. 183 (2001), in which, it appears to me, we concluded that the Appeals officer did not err by refusing to consider meritless arguments. Undoubtedly (given our holding in this case), the Appeals Office in Kemper did err in not permitting the taxpayer husband to record his meeting. Nevertheless, the burden is on the party seeking judicial review of an agency action to demonstrate prejudice from any error. DSE, Inc. v. United States, 169 F.3d 21, 31 (D.C. Cir. 1999). Since Judge Chiechi finds that the taxpayers in Kemper advance nothing but frivolous arguments and groundless claims, I fail to see how they are prejudiced by the Appeals Office’s error in failing to allow the taxpayer husband to record his meeting. I would reach the same result in Kemper as Judge Chiechi, but I would arrive there by a different path. Gale and Marvel, JJ., agree with this concurring opinion. See Lunsford v. Commissioner, 117 T.C. 159, 170-171 (2001) (Halpern, J., concurring). Vasquez, J., concurring: I agree with the majority opinion; however, I write separately to address two additional points. 1. We Are Not Invalidating the Regulations The majority opinion does not invalidate section 301.6320-1(d)(2) or 301.6330-l(d)(2), Q&A-D6, Proced. & Admin. Regs. Contra J. Swift’s dissenting op. pp. 28-29. In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., Q-D6 asks: “How are CDP hearings conducted?” In both sections 301.6320-l(d)(2) and 301.6330-l(d)(2), Proced. & Admin. Regs., A-D6 answers, in pertinent part: CDP hearings are much like Collection Appeal Program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer’s representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face" } ]

[ { "docid": "6007594", "title": "", "text": "a weekly salary of $115.00, which was shortly thereafter increased to $120.00 per week. The district judge calculated that this conversion was effected on the supposition that Blankenship would be required to work 50 hours per week. The judge then noted that, prior to the conversion, Blankenship had been working an average of 60 hours a week. No records were kept to show how many hours Blankenship actually worked after he was changed to a flat salary, but the district judge considered that Blankenship had worked approximately the same length of time, which, therefore, included ten hours per week for which he had received no. compensation. The district judge, therefore, ordered that Blankenship be paid for 10 hours at the minimum wage rate for those weeks during which he had been on salary, apparently on the theory that the minimum wage provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 206(a), had been violated. Although Blankenship was exempt from the overtime provisions of the FLSA, he was not exempt from the Act’s minimum wage provisions. However, United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2 Cir. 1960), which, we are persuaded, contains a correct statement of the law relevant to this case, shows that the minimum wage provisions were not violated. In Klinghoffer, certain employees agreed to work a specified number of hours for a given compensation and, in addition, to work for other periods with no compensation whatever. The Court concluded the workweek constituted the period of time over which wages should be measured to determine whether the employer was in compliance with the minimum wage provisions and that there was no statutory violation so long as “each employee received during each week compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate.” 285 F.2d at 493. In the instant case, it is clear that, applying the principles of Klinghoffer, there was no minimum wage violation. Even if the district court's finding that Blankenship averaged 60 hours per week is accepted, his compensation of $115 to" } ]

[ { "docid": "5834252", "title": "", "text": "on it and the only circuit court decision to directly address it is Monahan v. County of Chesterfield, 95 F.3d 1263, 1273 (4th Cir.1996). The Fourth Circuit’s decision is consistent with the Department of Labor’s (“DOL’s”) interpretations, 29 C.F.R. §§ 778.315, 778.317 and 29 C.F.R. § 778.322, which support the view that gap time claims are cognizable when the applicable employment contract does not provide compensation for all non-overtime hours. 1. Some District Courts Have Held that Gap Time Claims Are Not Cognizable, Even in Weeks of Over 40 Hours Some district courts have held that gap time claims, including those for gap time worked in weeks of over 40 hours, are not cognizable under the FLSA as long as the employee has been paid at or above the statutory minimum wage for all non-overtime hours. See Braddock v. Madison County, 34 F.Supp.2d 1098, 1112 (S.D.Ind.1998); Davis v. City of Loganville, Ga., 2006 U.S. Dist. LEXIS 20795, at *22-23 (M.D.G.A. Mar. 27, 2006); Arnold v. City of Fayetteville, Ark., 910 F.Supp. 1385, 1394 (E.D.Ark.1995). Under this approach, it is irrelevant whether the employment contract indicates that an employee’s salary is intended to compensate for all hours up to 40. Rather, as long as the average wage for the first 40 hours of work per week is above the minimum, a plaintiff cannot state a claim under the FLSA for non-overtime compensation. The rationale of these courts is that the remedial purpose of the FLSA does not support its expansion to a mechanism for employees to enforce a broad range of employers’ contractual obligations beyond the minimum wage and overtime requirements enacted by Congress. Braddock, 34 F.Supp.2d at 1112. Rather, such claims involve questions of contract law more appropriately left to resolution in state courts. Arnold, 910 F.Supp. at 1394. Applying the rationale of these district courts, plaintiffs here would have no claim for gap time pay because it is undisputed that their average wage for the first 40 hours of work per week is above the minimum. 2. Department of Labor Interpretations The DOL has issued interpretations of its own" }, { "docid": "5834253", "title": "", "text": "this approach, it is irrelevant whether the employment contract indicates that an employee’s salary is intended to compensate for all hours up to 40. Rather, as long as the average wage for the first 40 hours of work per week is above the minimum, a plaintiff cannot state a claim under the FLSA for non-overtime compensation. The rationale of these courts is that the remedial purpose of the FLSA does not support its expansion to a mechanism for employees to enforce a broad range of employers’ contractual obligations beyond the minimum wage and overtime requirements enacted by Congress. Braddock, 34 F.Supp.2d at 1112. Rather, such claims involve questions of contract law more appropriately left to resolution in state courts. Arnold, 910 F.Supp. at 1394. Applying the rationale of these district courts, plaintiffs here would have no claim for gap time pay because it is undisputed that their average wage for the first 40 hours of work per week is above the minimum. 2. Department of Labor Interpretations The DOL has issued interpretations of its own FLSA regulations which suggest that gap time claims are cognizable for hours worked in overtime weeks if the employment contract makes clear that the employee is not being paid for all non-overtime hours. 29 C.F.R. §§ 778.315, 778.317, 778.322. While these interpretations are not binding, they do “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944); see also Freeman v. NBC, 80 F.3d 78, 84 (2d Cir.1996). DOL interpretation § 778.322 states: If an employee whose maximum hours standard is 40 hours was hired at a salary of $200 for a fixed workweek of 40 hours, his regular rate at the time of hiring was $5 per hour. If his workweek is later reduced to a fixed workweek of 35 hours while his salary remains the same, it is the fact that it now takes him only 35 hours to earn $200, so that he earns his salary at the" }, { "docid": "5834257", "title": "", "text": "express or implied terms of the applicable employment contract provide compensation for all non-overtime hours. Monahan, 95 F.3d at 1273. In Monahan, a group of police officers sued their employer, Chesterfield County, for back pay compensation under the FLSA. The officers alleged, among other things, that they were owed compensation for hours worked in excess of their regularly scheduled shifts, but below the overtime threshold. The officers were regularly scheduled to work 135 hours per pay cycle, and were paid overtime compensation for all hours in excess of 147. The officers alleged that their salary was meant to compensate them only for 135 hours, and that they were therefore owed compensation for hours between 135 and 147. The defendant argued that the officers’ salaries compensated them for all hours up to the 147 hour overtime threshold. Relying on the DOL interpretations, the Fourth Circuit stated that, “to the extent that there can exist a straight time claim under the FLSA, the court must first determine the terms of the employment agreement. If there is no minimum wage or maximum hour violation, there is also no claim under the FLSA for straight time gap pay if employees have been properly compensated by salary for all non-overtime hours in accordance with the employment terms to which they have either expressly or impliedly agreed.” Id. at 1272. Applying this approach, the Fourth Circuit went on to decide that the plaintiffs’ salary was meant to compensate them for all non-overtime hours. Id. at 1279. The Court reasoned that there was a long standing practice between the parties of accepting payment for non-overtime hours in biweekly paychecks and additional payment at an overtime rate for all hours in excess of 147 per pay cycle. Although this left a gap of several allegedly unpaid hours between 135 and 147, the Court stated that the parties’ agreement on a particular annual salary, in combination with express written policies stating that employees would be paid overtime for all hours over 147, indicated that the employees’ salaries were meant to fully compensate them for all hours up to 147." }, { "docid": "15710036", "title": "", "text": "Wethington v. Montgomery, 935 F.2d 222 (11th Cir.1991); Anderson v. Bristol, 6 F.3d 1168 (6th Cir.1993); York v. Wichita Falls, 48 F.3d 919 (5th Cir.1995); but see, Lamon v. City of Shawnee, Kansas, 972 F.2d 1145 (10th Cir.1992) (requiring straight time pay for hours between 160 and 172 in a 28 day period where no overtime was worked). The relief available to employees who claim violations of §§ 206 and 207 of the FLSA is limited to “their unpaid minimum wages, or the unpaid overtime compensation, as the case may be and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). Section 215 of the FLSA lists “prohibited acts” as being a violation of §§ 206 (minimum wage), 207 (maximum hours/overtime provision), 212 (child labor), 211(e) (record keeping), 215(a)(3) (retaliation) or regulations issued under § 214 (employment of apprentices and others). There is no mention of any other regulatory or statutory provision in § 215. As a general rule, an employee cannot succeed on a claim under the FLSA if his average wage for a period in which he works no overtime exceeds minimum wage. Blankenship v. Thurston Motor Lines, 415 F.2d 1193, 1198 (4th Cir.1969); United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir.1960); Cuevas v. Monroe Street City Club, Inc., 752 F.Supp. 1405, 1417 (N.D.Ill.1990); Dove v. Coupe, 759 F.2d 167, 171 (D.C.Cir.1985); Travis v. Ray, 41 F.Supp. 6, 8 (W.D.Ky.1941); accord, Hensley v. MacMillan Bloedel Containers, 786 F.2d 353, 357 (8th Cir.1986); Marshall v. Sam Dell’s Dodge Corp., 451 F.Supp. 294, 301-303 (N.D.N.Y.1978). Indeed, partial summary judgment is appropriate where there is no dispute that the plaintiffs’ salary is above the minimum wage, and they are owed no overtime. Arnold v. State of Arkansas, 910 F.Supp. 1385, 1393 (W.D.Ark.1995). Letter opinions issued by U.S. Department of Labor’s Wage and Hour Division also support this general rule. In a DOL Letter Ruling (October 22, 1987) (reprinted in BNA Wages & Hours Manual at 99:5198), DOL found that a city was not required to pay extra for a fifteen minute roll call" }, { "docid": "9479169", "title": "", "text": "between 160 and 171 hours per cycle. The district court interpreted the Tenth Circuit’s decision in Lamon as requiring that .the issue under the FLSA be decided by examining the terms of the troopers’ employment contract with the State of Kansas. See 864 F.Supp. at 1063-64. After working through complex details of the state’s personnel system, the court ultimately concluded that, the troopers’ employment agreement provided a fixed monthly salary despite varying hours of work, supplemented with overtime pay as required by the FLSA. The court therefore held that the troopers were in fact being compensated for all non-overtime hours and that they were not entitled to additional pay for the gap time. Id. at 1069. This court essentially agrees with the Fourth Circuit’s analysis of the gap time issue in Monahan, including that court’s analysis of the Department of Labor regulations and the more general policy arguments under the FLSA. The FLSA does not provide a federal remedy for any and all breaches of payment obligations under employment contracts. The core rights and obligations the FLSA creates are the minimum wage levels and entitlement to overtime pay for work above specified maximum hours set forth in 29 U.S.C. §§ 206 and 207. The general “remedial purpose” of the FLSA does not support its expansion to a mechanism for employees to enforce a broad range of employers’ contractual obligations beyond the minimum wage and overtime requirements enacted by Congress. There is no doubt that the plaintiffs in this case have been the victims of FLSA violations of their right to overtime pay for hours worked above the 40 hour threshold that applies to most employees under the FLSA. The court will award relief for those violations. But with or without that relief, these plaintiffs do not claim that their compensation ever fell below the minimum wage required by the FLSA. In the absence of genuine overtime hours above the statutory threshold, the FLSA does not prohibit the terms of these plaintiffs’ employment contracts, which called for payment of a fixed level of compensation whether the plaintiffs worked 35 hours a" }, { "docid": "9479162", "title": "", "text": "a 40-hour week provided average hourly wages above the applicable minimum wage. The most thorough and persuasive discussion of this “gap time” issue appears in Mon-ahan. In that case the plaintiffs were police officers whose regular schedules called for 135 hours of work for a 24-day cycle. (The FLSA allows law enforcement and fire-fighting agencies to use such special schedules because of the unusual demands on employees’ time. 29 U.S.C. § 207(k); 95 F.3d at 1265-66. Under the FLSA, the overtime threshold for a 24-day work cycle is 147 hours. See 29 C.F.R. § 553.230.) The officers often worked more than 135 hours without any additional compensation, but they were paid overtime for their hours in excess of 147 hours. They sued under the FLSA for the “gap time” between 135 hours and 147 hours per 24-day cycle. The court’s analysis is equally applicable to the more standard 40-hour schedule. The district court in Monahan had granted summary judgment in favor of the plaintiffs, relying on Department of Labor regulations, especially 29 C.F.R. §§ 778.315 and 778.317. The Fourth Circuit reversed and directed entry of judgment in favor of the defendant employer: [W]e hold that if the mutually agreed upon terms of an employment agreement do not violate the FLSA’s minimum wage/maxi.mum hour mandates and provide compensation for all nonovertime hours up to the overtime threshold, there can be no viable claim for straight gap time under the FLSA if all hours worked above the threshold have been properly compensated at a proper overtime rate. 95 F.3d at 1273. The Fourth Circuit found it was undisputed that the officers knew their employer did not intend to pay them any extra cash for hours worked in excess of 135 hours but less than 147 hours per cycle. Id. at 1273-75. Because the officers’ salaries exceeded the FLSA’s minimum wage requirements whether the officers worked 135 or 147 hours per cycle, the Fourth Circuit held that the FLSA did not entitle the officers to any additional hourly compensation for those “gap time” hours between 135 and 147 hours per cycle. The FLSA" }, { "docid": "9479170", "title": "", "text": "the FLSA creates are the minimum wage levels and entitlement to overtime pay for work above specified maximum hours set forth in 29 U.S.C. §§ 206 and 207. The general “remedial purpose” of the FLSA does not support its expansion to a mechanism for employees to enforce a broad range of employers’ contractual obligations beyond the minimum wage and overtime requirements enacted by Congress. There is no doubt that the plaintiffs in this case have been the victims of FLSA violations of their right to overtime pay for hours worked above the 40 hour threshold that applies to most employees under the FLSA. The court will award relief for those violations. But with or without that relief, these plaintiffs do not claim that their compensation ever fell below the minimum wage required by the FLSA. In the absence of genuine overtime hours above the statutory threshold, the FLSA does not prohibit the terms of these plaintiffs’ employment contracts, which called for payment of a fixed level of compensation whether the plaintiffs worked 35 hours a week, 40 hours a week, or some amount in between, with an ability to take compensatory time for hours in excess of 35 hours a week. Because these plaintiffs’ contracts were not breached, this court need not decide whether it accepts the analysis in Schmitt. Even under that approach, and certainly under the Monahan approach, plaintiffs in this case are not entitled to additional compensation under the FLSA for “gap time” hours. C. Years Available for Overtime Claims On the last business day before trial in this action, Madison County moved for leave to amend its answer to assert, for the first time, a statute of limitations defense under the FLSA. Under the FLSA, the statute of limitations is two years in most cases, but three years for willful violations. See 29 U.S.C. § 255(a). The statute of limitations remains an affirmative defense that must be pleaded in an answer, and a defendant can waive the defense by failing to plead it. See Fed.R.Civ.P. 8(c); Mumbower v. Callicott, 526 F.2d 1183, 1187 n. 5 (8th" }, { "docid": "9479163", "title": "", "text": "and 778.317. The Fourth Circuit reversed and directed entry of judgment in favor of the defendant employer: [W]e hold that if the mutually agreed upon terms of an employment agreement do not violate the FLSA’s minimum wage/maxi.mum hour mandates and provide compensation for all nonovertime hours up to the overtime threshold, there can be no viable claim for straight gap time under the FLSA if all hours worked above the threshold have been properly compensated at a proper overtime rate. 95 F.3d at 1273. The Fourth Circuit found it was undisputed that the officers knew their employer did not intend to pay them any extra cash for hours worked in excess of 135 hours but less than 147 hours per cycle. Id. at 1273-75. Because the officers’ salaries exceeded the FLSA’s minimum wage requirements whether the officers worked 135 or 147 hours per cycle, the Fourth Circuit held that the FLSA did not entitle the officers to any additional hourly compensation for those “gap time” hours between 135 and 147 hours per cycle. The FLSA required only (a) that the minimum wage be paid for those hours up to 147 hours per cycle, and (b) that overtime be paid for hours in excess of 147 hours per cycle. Because the employer complied with those requirements in Mon-ahan, the officers’ FLSA claim for straight time pay for gap time was rejected. To the extent the officers were unhappy with the terms of their employment, as thus interpreted, they were left to the devices of contract law. The Fourth Circuit rejected the officers’ reliance on 29 C.F.R. § 778.317, entitled “Agreements not to pay for certain nonover-time hours.” The regulation states: - An agreement not to compensate employees for certain nonovertime hours stands on no better footing since it would have the same effect of diminishing the employee’s total overtime compensation. An agreement, for example, to pay an employee whose maximum hours standard for the particular workweek is 40 hours, $5 an hour for the first 35 hours, nothing for hours between 35 and 40 and $7.50 an hour for the hours" }, { "docid": "1806648", "title": "", "text": "enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates: (1) ... not less than $3.35 an hour during the period ending March 31, 1990[.] Even though that speaks of an hourly rate, it has long been well-settled that no violation occurs (United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 490 (2d Cir.1960)): so long as the total weekly wage paid by an employer meets the minimum weekly requirements of the statute, such minimum weekly requirement being equal to the number of hours actually worked that week multiplied by the minimum hourly statutory requirement. Accord (quoting and following Klinghoffer), such cases as Hensley v. MacMillan Bloedel Containers, Inc., 786 F.2d 353, 357 (8th Cir.1986); Dove v. Coupe, 759 F.2d 167, 171 (D.C.Cir.1985); Blankenship v. Thurston Motor Lines, Inc., 415 F.2d 1193, 1198 (4th Cir.1969). For current purposes it will be accepted (as Monroe allows to be assumed for purposes of its motion) that each of the Minimum Wage Plaintiffs worked the hours he claims. Even on that basis, how ever, each received weekly pay that, when divided by the total hours worked, was well in excess of $3.35 per hour for each week worked — with just one partial exception (Lewis Aff., Exs. E-K). That one exception is that Ertel was paid only $3.20 per hour in her first week of work. Because she worked ten hours during that week, she was underpaid a total of $1.50. Under Section 216(b) Ertel is entitled to her unpaid minimum wages and an additional equal amount as liquidated damages, or a $3 total. This Court holds no brief for any employer practice of having employees work hours “off the clock” — it makes it too easy to evade FLSA’s minimum wage and overtime requirements, and it is especially troublesome when the employees involved are at the lowest end of the pay spectrum and hence are presumably least equipped to protect their own interests. But as a matter, of law, such a practice does not violate Section 206(a) as long as employees are receiving the" }, { "docid": "9479161", "title": "", "text": "the violations. Because the county has been plaintiffs’ employer, because no exemptions apply, and because plaintiffs have not been paid overtime compensation as required by the FLSA, plaintiffs are entitled to overtime compensation for hours worked in excess of 40 hours a week. B. The “Gap Time” Issue Plaintiffs also rely on the FLSA to demand straight-time pay for so-called “gap time.” Plaintiffs were required to work 35 hours a week to earn the compensation appropriated by the County Council. Plaintiffs contend that because their compensation was based on a 35-hour week, the FLSA entitles them to straight time wages for hours worked in excess of 35 hours a week but less than 40 hours a week. They rely primarily on La mon v. City of Shawnee, 754 F.Supp. 1518 (D.Kan.1991), aff'd in relevant part, 972 F.2d 1145, 1155 (10th Cir.1992). Madison County relies on Monahan v. County of Chesterfield, 95 F.3d 1263 (4th Cir.1996), to argue that the FLSA does not require payment for “gap time” so long as the plaintiffs’ actual compensation for a 40-hour week provided average hourly wages above the applicable minimum wage. The most thorough and persuasive discussion of this “gap time” issue appears in Mon-ahan. In that case the plaintiffs were police officers whose regular schedules called for 135 hours of work for a 24-day cycle. (The FLSA allows law enforcement and fire-fighting agencies to use such special schedules because of the unusual demands on employees’ time. 29 U.S.C. § 207(k); 95 F.3d at 1265-66. Under the FLSA, the overtime threshold for a 24-day work cycle is 147 hours. See 29 C.F.R. § 553.230.) The officers often worked more than 135 hours without any additional compensation, but they were paid overtime for their hours in excess of 147 hours. They sued under the FLSA for the “gap time” between 135 hours and 147 hours per 24-day cycle. The court’s analysis is equally applicable to the more standard 40-hour schedule. The district court in Monahan had granted summary judgment in favor of the plaintiffs, relying on Department of Labor regulations, especially 29 C.F.R. §§ 778.315" }, { "docid": "5834255", "title": "", "text": "average rate of $5.71 per hour. His regular rate thus becomes $5.71 per hour; it is no longer $5 an hour. Overtime pay is due under the Act only for hours worked in excess of 40, not 35, but if the understanding of the parties is that the salary of $200 now covers 35 hours of work and no more, the employee would be owed $5.71 per hour under his employment contract for each hour worked between 35 and h0. He would be owed not less than one and one-half times $5.71 ($8.57) per hour, under the statute, for each hour worked in excess of 40 in the workweek. In weeks in which no overtime is worked only the provisions of section 6 of the Act, requiring the payment of not less than the applicable minimum wage for each hour worked, apply so that the employee’s right to receive $5.71 per hour is enforceable only under his contract. However, in overtime weeks the Administrator has the duty to insure the payment of at least one and one-half times the employee’s regular rate of pay for hours worked in excess of 40 and this overtime compensation cannot be said to have been paid until all straight time compensation due the employee under the statute or his employment contract has been paid. Thus if the employee works 41 hours in a particular week, he is owed his salary for 35 hours — $200, 5 hours’ pay at $5.71 per hour for the 5 hours between 35 and 40 — $28.55, and 1 hour’s pay at $8.57 for the 1 hour in excess of 40 — $8.57, for a total of $237.12 for the week. 29 C.F.R. § 778.322(emphasis added). Related DOL interpretations, 29 C.F.R. §§ 778.315 and 778.317, also support the view that gap time claims are cognizable when the applicable employment contract does not provide compensation for all non-overtime hours. 3. Decisions by the Fourth and Tenth Circuits Relying on these DOL interpretations, the Fourth Circuit held in Monahan that gap time claims are not cognizable under the FLSA where the" }, { "docid": "79479", "title": "", "text": "of those forty-hour weeks, would suffice. But no such allegation is present in this case. Accordingly, the District Court did not err in dismissing the plaintiffs’ claims for overtime under the FLSA. B. The plaintiffs also challenge the District Court’s determination that their claims for gap time are not within the FLSA’s purview. In addition to seeking unpaid overtime compensation, employees may seek to recover wages for uncompensated hours worked that “fall between the minimum wage and the overtime provisions of the FLSA,” otherwise known as “gap time.” Adair v. City of Kirkland, 185 F.3d 1055, 1062 (9th Cir.1999). Gap time refers to time that is not covered by the overtime provisions because it does not exceed the overtime limit, and to time that is not covered by the minimum wage provisions because, even though it is uncompensated, the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked. Id. at 1062 n. 6. In other words, “gap time” is non-overtime hours worked for which an employee is not compensated. Because an employee has a sufficiently high hourly rate, when all compensated and non-compensated hours are divided into the weekly pay, the employee’s average hourly pay still exceeds the FLSA minimum. Courts widely agree that there is no cause of action under the FLSA for “pure” gap time wages — that is, wages for unpaid work during pay periods without overtime. See, e.g., Nakahata, 723 F.3d at 201 (“[T]he FLSA is unavailing where wages do not fall below the statutory minimum and hours do not rise above the overtime threshold.”); Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir.1996) (same). However, some courts have recognized as viable gap time claims by an employee who exceeds the overtime threshold, but whose employment contract does not compensate him or her for all non-overtime hours (“overtime gap time”). See, e.g., Monahan, 95 F.3d at 1272-73; Valcho v. Dallas Cnty. Hosp. Dist., 658 F.Supp.2d 802, 811-12 (N.D.Tex.2009); Koelker v. Mayor & City Council of Cumberland, 599 F.Supp.2d 624, 635 (D.Md.2009); cf., e.g., 29" }, { "docid": "23128907", "title": "", "text": "40 hours. The viability of such a claim has not yet been settled in this Circuit, but we now hold that FLSA does not provide for a gap-time claim even when an employee has worked overtime. As the district court explained, the text of FLSA requires only payment of minimum wages and overtime wages. See 29 U.S.C. §§ 201-19. It simply does not consider or afford a recovery for gap-time hours. Our reasoning in Klinghoffer confirms this view: “[T]he agreement to work certain additional hours for nothing was in essence an agreement to accept a reduction in pay. So long as the reduced rate still exceeds [the minimum wage], an agreement to accept reduced pay is valid .... ” 285 F.2d at 494. Plaintiffs here have not alleged that they were paid below minimum wage. So long as an employee is being paid the minimum wage or more, FLSA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week. See id. In this way federal law supplements the hourly employment arrangement with features that may not be guaranteed by state laws, without creating a federal remedy for all wage disputes — of which the garden variety would be for payment of hours worked in a 40-hour work week. For such claims there seems to be no lack of a state remedy, including a basic contract action. See, e.g., Point IV (discussing the New York Labor Law). As the district court observed, some courts may allow such claims to a limited extent. Special App. 13 (citing Monahan, 95 F.3d at 1279, and other cases). Among them is the Fourth Circuit in Monahan, which relied on interpretive guidance provided by the Department of Labor. See 29 C.F.R. §§ 778.315, .317, .322. “Unlike regulations,” however, “interpretations are not binding and do not have the force of law.” Freeman v. Nat’l Broad. Co., 80 F.3d 78, 83 (2d Cir.1996) (analyzing deference owed to Department of Labor interpretation of FLSA). “Thus, although they are entitled to some deference, the weight accorded a particular" }, { "docid": "5834256", "title": "", "text": "and one-half times the employee’s regular rate of pay for hours worked in excess of 40 and this overtime compensation cannot be said to have been paid until all straight time compensation due the employee under the statute or his employment contract has been paid. Thus if the employee works 41 hours in a particular week, he is owed his salary for 35 hours — $200, 5 hours’ pay at $5.71 per hour for the 5 hours between 35 and 40 — $28.55, and 1 hour’s pay at $8.57 for the 1 hour in excess of 40 — $8.57, for a total of $237.12 for the week. 29 C.F.R. § 778.322(emphasis added). Related DOL interpretations, 29 C.F.R. §§ 778.315 and 778.317, also support the view that gap time claims are cognizable when the applicable employment contract does not provide compensation for all non-overtime hours. 3. Decisions by the Fourth and Tenth Circuits Relying on these DOL interpretations, the Fourth Circuit held in Monahan that gap time claims are not cognizable under the FLSA where the express or implied terms of the applicable employment contract provide compensation for all non-overtime hours. Monahan, 95 F.3d at 1273. In Monahan, a group of police officers sued their employer, Chesterfield County, for back pay compensation under the FLSA. The officers alleged, among other things, that they were owed compensation for hours worked in excess of their regularly scheduled shifts, but below the overtime threshold. The officers were regularly scheduled to work 135 hours per pay cycle, and were paid overtime compensation for all hours in excess of 147. The officers alleged that their salary was meant to compensate them only for 135 hours, and that they were therefore owed compensation for hours between 135 and 147. The defendant argued that the officers’ salaries compensated them for all hours up to the 147 hour overtime threshold. Relying on the DOL interpretations, the Fourth Circuit stated that, “to the extent that there can exist a straight time claim under the FLSA, the court must first determine the terms of the employment agreement. If there is no" }, { "docid": "23128905", "title": "", "text": "work, she alleges that her 30-minute meal breaks were “typically” missed or interrupted and that she worked uncompensated time before her scheduled shifts, “typically” 30 minutes, and after her scheduled shifts, “often” an additional two hours. Id. Maybe she missed all of her meal breaks, and always worked an additional 30 minutes before and two hours after her shifts, and maybe some of these labors were performed in a week when she worked more than her four shifts. But this invited speculation does not amount to a plausible claim under FLSA. 3. Lundy worked between 22.5 and 30 hours per week, J.A. 1800, and Plaintiffs conceded below — and do not dispute on appeal — that he never worked over 40 hours in any given week. We therefore affirm the dismissal of Plaintiffs’ FLSA overtime claims. We need not consider alternative grounds that were conscientiously explored by the district court, such as the lack of an employer-employee relationship between the named Plaintiffs and many of the Defendants, and the insufficient allegations that additional minutes, such as meal breaks, were “compensable” as a matter of law. Ill A gap-time claim is one in which an employee has not worked 40 hours in a given week but seeks recovery of unpaid time worked, or in which an employee has worked over 40 hours in a given week but seeks recovery for unpaid work under 40 hours. An employee who has not worked overtime has no claim under FLSA for hours worked below the 40-hour overtime threshold, unless the average hourly wage falls below the federal minimum wage. See United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1960) (denying petitions for rehearing); Monahan v. Cnty. of Chesterfield, 95 F.3d 1263, 1280 (4th Cir.1996) (“Logically, in pay periods without overtime, there can be no violation of section 207 which regulates overtime payment.”). Notwithstanding that Plaintiffs have failed to sufficiently allege any week in which they worked uncompensated time in excess of 40 hours, Plaintiffs invoke FLSA to seek gap-time wages for weeks in which they claim to have worked over" }, { "docid": "5834250", "title": "", "text": "hours. Plaintiffs allege that their annual salary is intended to compensate them for 37.5 hours per week and that their overtime pay compensates them for hours above 40 per week. Therefore, they claim that they are owed 2.5 hours of pay at the regular rate for those hours worked between 37.5 and 40. This is a typical “gap time” claim, so-called because plaintiffs seek compensation for hours worked “in the gap” between non-overtime hours compensated for by their salary and hours above 40 which are compensated for with overtime pay. Plaintiffs claim that they are owed unpaid gap time only in workweeks in which they worked in excess of 40 hours. In the weeks in which plaintiffs worked fewer than 40 hours, it is undisputed that plaintiffs’ average hourly wage was above the statutory minimum set forth in 29 U.S.C. § 206. A. Whether Claims for Gap Time Are Cognizable Under the FLSA The FLSA explicitly mandates payment of minimum wage levels only for non-overtime hours and overtime pay rates only for work above the specified maximum hours. 29 U.S.C. §§ 201-219. Therefore, it is not clear that an employee can state a claim under the FLSA for “gap time” if her average wage for non-overtime hours meets the statutory minimum. Those courts to address the question agree that an employee cannot state a claim under the FLSA if her average wage, for a period in which she worked no overtime, exceeds the minimum wage. United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1961); Blankenship v. Thurston Motor Lines, Inc., 415 F.2d 1193, 1198 (4th Cir.1969); Hensley v. MacMillan Bloedel Containers, 786 F.2d 353, 357 (8th Cir.1986). This is because the premium overtime requirements of the FLSA do not apply until an employee has worked in excess of the statutory overtime requirement of 40 hours per week. Here, however, plaintiffs are suing only for gap time in those weeks in which they worked overtime hours. District courts around the country have disagreed about whether this type of claim is cognizable. The Second Circuit has not ruled" }, { "docid": "79480", "title": "", "text": "is not compensated. Because an employee has a sufficiently high hourly rate, when all compensated and non-compensated hours are divided into the weekly pay, the employee’s average hourly pay still exceeds the FLSA minimum. Courts widely agree that there is no cause of action under the FLSA for “pure” gap time wages — that is, wages for unpaid work during pay periods without overtime. See, e.g., Nakahata, 723 F.3d at 201 (“[T]he FLSA is unavailing where wages do not fall below the statutory minimum and hours do not rise above the overtime threshold.”); Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir.1996) (same). However, some courts have recognized as viable gap time claims by an employee who exceeds the overtime threshold, but whose employment contract does not compensate him or her for all non-overtime hours (“overtime gap time”). See, e.g., Monahan, 95 F.3d at 1272-73; Valcho v. Dallas Cnty. Hosp. Dist., 658 F.Supp.2d 802, 811-12 (N.D.Tex.2009); Koelker v. Mayor & City Council of Cumberland, 599 F.Supp.2d 624, 635 (D.Md.2009); cf., e.g., 29 C.F.R. §§ 778.315, 778.317, 778.322. As an initial matter, we agree with the clear weight of authority and hold that pure gap time claims — straight time wages for unpaid work during pay periods without overtime — are not cognizable under the FLSA, which requires payment of minimum wages and overtime wages only. See 29 U.S.C. §§ 201-19. The District Court therefore correctly found that, “[t]o the extent Plaintiffs seek recovery under the FLSA for hours worked but not compensated below the [forty]-hour weekly threshold ... the FLSA does not provide [them] the remedy they seek.” App. 69 (emphasis added); see also App. 845, 1469, 1655, 2330-31, 3259 (alleging that the plaintiffs “regularly worked hours both under and in excess of [forty] per week and were not paid for all of those hours” (emphasis added)). The court did not address, however, the possibility that the plaintiffs’ gap time claims might constitute claims for “overtime gap time.” We need not resolve the issue in this case because, as discussed above, the plaintiffs have not plausibly alleged" }, { "docid": "5834251", "title": "", "text": "specified maximum hours. 29 U.S.C. §§ 201-219. Therefore, it is not clear that an employee can state a claim under the FLSA for “gap time” if her average wage for non-overtime hours meets the statutory minimum. Those courts to address the question agree that an employee cannot state a claim under the FLSA if her average wage, for a period in which she worked no overtime, exceeds the minimum wage. United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1961); Blankenship v. Thurston Motor Lines, Inc., 415 F.2d 1193, 1198 (4th Cir.1969); Hensley v. MacMillan Bloedel Containers, 786 F.2d 353, 357 (8th Cir.1986). This is because the premium overtime requirements of the FLSA do not apply until an employee has worked in excess of the statutory overtime requirement of 40 hours per week. Here, however, plaintiffs are suing only for gap time in those weeks in which they worked overtime hours. District courts around the country have disagreed about whether this type of claim is cognizable. The Second Circuit has not ruled on it and the only circuit court decision to directly address it is Monahan v. County of Chesterfield, 95 F.3d 1263, 1273 (4th Cir.1996). The Fourth Circuit’s decision is consistent with the Department of Labor’s (“DOL’s”) interpretations, 29 C.F.R. §§ 778.315, 778.317 and 29 C.F.R. § 778.322, which support the view that gap time claims are cognizable when the applicable employment contract does not provide compensation for all non-overtime hours. 1. Some District Courts Have Held that Gap Time Claims Are Not Cognizable, Even in Weeks of Over 40 Hours Some district courts have held that gap time claims, including those for gap time worked in weeks of over 40 hours, are not cognizable under the FLSA as long as the employee has been paid at or above the statutory minimum wage for all non-overtime hours. See Braddock v. Madison County, 34 F.Supp.2d 1098, 1112 (S.D.Ind.1998); Davis v. City of Loganville, Ga., 2006 U.S. Dist. LEXIS 20795, at *22-23 (M.D.G.A. Mar. 27, 2006); Arnold v. City of Fayetteville, Ark., 910 F.Supp. 1385, 1394 (E.D.Ark.1995). Under" }, { "docid": "23128906", "title": "", "text": "as meal breaks, were “compensable” as a matter of law. Ill A gap-time claim is one in which an employee has not worked 40 hours in a given week but seeks recovery of unpaid time worked, or in which an employee has worked over 40 hours in a given week but seeks recovery for unpaid work under 40 hours. An employee who has not worked overtime has no claim under FLSA for hours worked below the 40-hour overtime threshold, unless the average hourly wage falls below the federal minimum wage. See United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1960) (denying petitions for rehearing); Monahan v. Cnty. of Chesterfield, 95 F.3d 1263, 1280 (4th Cir.1996) (“Logically, in pay periods without overtime, there can be no violation of section 207 which regulates overtime payment.”). Notwithstanding that Plaintiffs have failed to sufficiently allege any week in which they worked uncompensated time in excess of 40 hours, Plaintiffs invoke FLSA to seek gap-time wages for weeks in which they claim to have worked over 40 hours. The viability of such a claim has not yet been settled in this Circuit, but we now hold that FLSA does not provide for a gap-time claim even when an employee has worked overtime. As the district court explained, the text of FLSA requires only payment of minimum wages and overtime wages. See 29 U.S.C. §§ 201-19. It simply does not consider or afford a recovery for gap-time hours. Our reasoning in Klinghoffer confirms this view: “[T]he agreement to work certain additional hours for nothing was in essence an agreement to accept a reduction in pay. So long as the reduced rate still exceeds [the minimum wage], an agreement to accept reduced pay is valid .... ” 285 F.2d at 494. Plaintiffs here have not alleged that they were paid below minimum wage. So long as an employee is being paid the minimum wage or more, FLSA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week. See id. In this" }, { "docid": "5834249", "title": "", "text": "(2d Cir.2008) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985)). II. The FLSA The central provisions of the FLSA are its minimum wage and maximum hour provisions. 29 U.S.C. §§ 206-07. Section 206 mandates that an employer pay each employee a minimum hourly wage. 29 U.S.C. §§ 203, 206. Section 207 requires that an employer pay overtime at a rate of one and a half times an employee’s regular rate for all hours worked in excess of 40 per week. 29 U.S.C. § 207(a)(1). An employee’s regular rate of pay is the employee’s average hourly wage for non-overtime hours, including all shift differentials, but excludes premium pay for holidays, overtime hours, gifts, stock, bonuses and certain other premiums. 29 U.S.C. § 207(e). III. Plaintiffs’ Claim for Allegedly Uncompensated “Gap Time” Plaintiffs move for summary judgment that those employees who do not receive a half hour, duty free meal break are owed compensation for an additional 2.5 hours of back pay at the regular rate for each week in which they worked over forty hours. Plaintiffs allege that their annual salary is intended to compensate them for 37.5 hours per week and that their overtime pay compensates them for hours above 40 per week. Therefore, they claim that they are owed 2.5 hours of pay at the regular rate for those hours worked between 37.5 and 40. This is a typical “gap time” claim, so-called because plaintiffs seek compensation for hours worked “in the gap” between non-overtime hours compensated for by their salary and hours above 40 which are compensated for with overtime pay. Plaintiffs claim that they are owed unpaid gap time only in workweeks in which they worked in excess of 40 hours. In the weeks in which plaintiffs worked fewer than 40 hours, it is undisputed that plaintiffs’ average hourly wage was above the statutory minimum set forth in 29 U.S.C. § 206. A. Whether Claims for Gap Time Are Cognizable Under the FLSA The FLSA explicitly mandates payment of minimum wage levels only for non-overtime hours and overtime pay rates only for work above the" } ]

[ { "docid": "4460020", "title": "", "text": "may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k) (1976). The availability of an attorney’s fee encourages individuals injured by discrimination to seek judicial redress. As the Supreme Court explained: When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only.... If [a plaintiff] obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief .... Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,401-02, 88 S.Ct. 964, 966-67, 19 L.Ed.2d 1263 (1968) (footnotes omitted) ; accord, New York Gaslight Club, Inc., v. Carey, 447 U.S. 54, 60-66, 100 S.Ct. 2024, 2029-2032, 64 L.Ed.2d 723 (1980). Confronted by the explicit language of the statute and its accompanying legislative history, the government in the instant ease concedes that plaintiff is entitled to an attorney’s fee. Indeed, the parties so stipulated during the course of the lawsuit. At issue in this appeal is whether the District Court’s fee award was reasonable. The Court of Appeals for the Fifth Circuit explained, in general terms, how the fee. should be calculated under Title VII in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (1974). In Johnson, the court suggested that" } ]

[ { "docid": "7063588", "title": "", "text": "its constitutionality by the court. At that time, Hong declined to stipulate to the entry of a temporary restraining order. Plaintiff thereupon filed the instant action on December 3, 1980. A consent judgment was entered on March 9, 1981. In the consent judgment the parties made no admissions as to any issues of fact or law and Defendants agreed not to enforce or attempt to enforce H.R.S. § 514E-11(1). The consent judgment left for determination of the court any issues respecting costs and attorney’s fees. Plaintiff subsequently filed this motion as the prevailing party in this action seeking an award of attorney’s fees and costs pursuant to the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988. Defendants contend that special circumstances exist in the instant case which should preclude the award of attorney’s fees. The Court agrees that the special circumstances of the case are such that the filing of this suit was superfluous and unnecessary to Plaintiff’s ultimate relief and, therefore, attorney’s fees should not be awarded. Plaintiff has obtained the relief sought and, therefore, is undoubtedly the prevailing party. The fact that the relief was obtained by way of settlement does not preclude an award of attorney’s fees. Morrison v. Ayoob, 627 F.2d 669 (3rd Cir. 1980). The fact that a plaintiff prevailed through settlement rather than through litigation does not weaken the claim for fees. Gagne v. Maher, 594 F.2d 336 (2nd Cir. 1979) aff’d 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). The award of attorney’s fees pursuant to Section 1988, however, is nonetheless within the discretion of the court. In Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam), the Supreme Court held that successful plaintiffs in a suit for injunctive relief under Title II of the Civil Rights Act of 1964 “should ordinarily recov er an attorney’s fee unless special circumstances would render such an award unjust.” Id. at 402, 88 S.Ct. at 966. This same standard has been applied to awards under Section 1988. Aho v. Clark, 608" }, { "docid": "20323101", "title": "", "text": "has been materially altered and the Plaintiffs have succeeded in their Constitutional challenge to its configuration. Moreover, it would be inappropriate to deny the Plaintiffs “prevailing party” status merely because they later objected to the Legislature’s redrawn district. See Church of Scientology Flag Service, Org., Inc. v. City of Clearwater, 2 F.3d 1509, 1514 (11th Cir, 1993), cert. denied, 513 U.S. 807, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994). The Plaintiffs’ actions in response to the Legislative plan have little to do with the question of whether the Plaintiffs prevailed in this litigation. See id. The Plaintiffs have fully succeeded in their suit to strike down the former District Three. That the Plaintiffs may later seek to challenge the new modified District Three is irrelevant: “When there is a material change in the legal relationship between the parties which benefitted [the plaintiff], the fact that [the plaintiff] continues to challenge that relationship as modified does not mean that it did not ‘prevail’ as a threshold matter.” Id. (b) The “special circumstances” exception. The State Defendants also argue that they have acted in good faith, so that “special circumstances” exist which make it unjust to make them pay the Plaintiffs’ attorney fees. Although section 1988 does not require the court to award an attorney’s fee to the prevailing party in every ease, the court’s discretion is extremely limited: “the prevailing party ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67, 72 n. 1 (1989) (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1266 (1968); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40, 47-48 (1983)); see also Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir.1981). Moreover, because the special circumstances exception is a judicially imposed provision not found within the text of section 1988, the exception “should be narrowly construed so as not to interfere with the congressional purpose in" }, { "docid": "21547534", "title": "", "text": "Title 42 U.S.C. § 1988 provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988; see Hensley v. Eckerhart, 461 U.S. 424, 426, 103 S.Ct. 1933, 1935, 76 L.Ed.2d 40 (1983). In Eckerhart, the Court noted that despite the “American Rule” that parties bear their own attorney’s fees, Congress has decreed that in certain civil rights cases the district court is authorized to award fees to prevailing parties. The Court stated: the purpose of § 1988 is to ensure “effective access to the judicial process” for persons with civil rights grievances. Accordingly, a prevailing plaintiff “ ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” 461 U.S. at 429, 103 S.Ct. at 1937 (quoting legislative history quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)) (citations omitted). We must, therefore, first determine whether the plaintiffs prevailed, and second decide whether any special circumstances render an award unjust. Prevailing Parties Shortly before the district court issued its order, the Supreme Court, rejecting the “central issue” test previously applied in this circuit and the new Fifth Circuit, ruled that if the plaintiff has “succeeded on ‘any significant issue in the litigation which aehieve[d] some of the benefit the parties sought in bringing suit’ the plaintiff has crossed the threshold to a fee award of some kind [as a prevailing party under § 1988].” Texas State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, -, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). The Supreme Court stated: [w]here the plaintiff’s success on a legal claim can be characterized as purely technical or de minimis, a district court would be justified in concluding that even the “generous formulation” [for prevailing party status] we adopt today has not been satisfied. The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a" }, { "docid": "22993738", "title": "", "text": "merits and for time spent litigating the fee question. They have not appealed from the district court’s refusal to supplement the original award. On their cross-appeal, defendants contest the awarding of fees for time spent by plaintiffs’ attorneys subsequent to the granting of summary judgment. We affirm this post-summary judgment award of the district court, and we hold that plaintiffs’ attorneys are also entitled to compensation for their appellate work on the merits and for time expended in establishing their entitlement to fees. The Civil Rights Attorney’s Fees Awards Act declares that: In any action or proceeding to enforce a provision of §§ 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes [42 U.S.C. §§ 1981-1983, 1985, 1986], ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 90 Stat. 2641, 42 U.S.C. § 1988. Although the Act on its face provides that the decision to award attorney’s fees is a matter committed to the discretion of the court, we observed in Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979), that: [T]he history of the provision makes it clear that the trial court’s discretion is narrow: “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S. Code Cong. & Admin.News 5912.” Thus, “a prevailing plaintiff should receive fees [under the Act] almost as a matter of course.” Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978); Dawson, 600 F.2d at 79. Plaintiffs’ status as the prevailing party in this case has already been established in Bond I. 504 F.2d at 1251. Turning first to the district court’s" }, { "docid": "12486887", "title": "", "text": "this argument. Respondent B. Nathanson claims that he should be awarded his attorney’s fees and costs because he was not found in contempt. No other opposition to the fee application has been filed. Plaintiffs seek $11,712.47 for attorney’s fees and costs incurred as a result of Washburn’s violation of Rule 11. Wash-burn, in his motion to vacate the imposition of Rule 11 sanctions, argues that an evi-dentiary hearing was required before sanctions could be imposed, and challenges certain procedural steps taken by plaintiffs in pursuing their Rule 11 motion. The Court will first discuss plaintiffs’ entitlement to fees under section 1988, the reasonableness of the award they request and defendants’ objections to this award. Next, the Court will address the reasonableness of plaintiffs' application for fees against the contemnors, and the objections raised by the contemnors to this fee request. Finally, the Court will consider Washburn’s motion to vacate the imposition of Rule 11 sanctions and the reasonableness of the attorney’s fees and costs requested by plaintiffs. DISCUSSION A. 42 U.S.C. § 1988 Pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, a district court, in its discretion, may award attorney’s fees and costs to the prevailing party in any action or proceeding to enforce certain civil rights acts. 42 U.S.C. § 1988. 1. Entitlement to Fees — Plaintiffs as Prevailing Parties The statutory language of section 1988 creates a presumption in favor of fee awards, Di Filippo v. Morizio, 759 F.2d 231, 234 (2d Cir.1985), and a prevailing party is ordinarily entitled to recover fees and costs unless there are special circumstances which would render such an award unjust. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). The Supreme Court has recently explained that a party meets the threshold requirement necessary to be considered a prevailing party under section 1988 if he or she succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Texas State Teachers Ass’n. v. Garland Independent School District, 489 U.S. 782, 109" }, { "docid": "12486888", "title": "", "text": "the Civil Rights Attorney’s Fees Awards Act of 1976, a district court, in its discretion, may award attorney’s fees and costs to the prevailing party in any action or proceeding to enforce certain civil rights acts. 42 U.S.C. § 1988. 1. Entitlement to Fees — Plaintiffs as Prevailing Parties The statutory language of section 1988 creates a presumption in favor of fee awards, Di Filippo v. Morizio, 759 F.2d 231, 234 (2d Cir.1985), and a prevailing party is ordinarily entitled to recover fees and costs unless there are special circumstances which would render such an award unjust. See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). The Supreme Court has recently explained that a party meets the threshold requirement necessary to be considered a prevailing party under section 1988 if he or she succeeds on “any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Texas State Teachers Ass’n. v. Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (rejecting the “central issue” test for determining an award of attorney’s fees). See also, Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute. Texas State Teachers Ass’n. v. Garland Independent School District, supra, 109 S.Ct. at 1493. Defendants concede, as they must in light of the numerous legal issues decided in plaintiffs’ favor and plaintiffs’ success in obtaining a permanent injunction, that “it is clear that the plaintiffs are ‘prevailing parties’ and that defendants are ‘losing parties.’ ” Memorandum of Law, filed March 16,1990 at 6. They argue, however, that special circumstances exist which render a fee award in this case unjust. Specifically, defendants maintain that they are immune from an award of attorney’s fees because, as a per se rule, activity in opposition to abortion is exempt from the application" }, { "docid": "11894997", "title": "", "text": "706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, allow for the recovery of attorneys’ fees and costs by prevailing parties in suits brought under Title VII and under the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. The applicable sections of those Acts provide that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §§ 1988, 2000e-5(k). The statutory purpose of the provisions is to promote private enforcement of the Civil Rights Acts. S.Rep.No. 94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Ad. News 5908, 5912. Although the statutory language makes the award of attorneys’ fees discretionary, the general rule which has developed indicates that the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). That statement was further explained in N.Y. Gaslight Club, Inc. v. Kerry, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980): [I]t is clear that one of Congress’ primary purposes in enacting ... [Section 706(k) ] was to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’... Because Congress has cast the Title VII plaintiff in the roll of ‘a private attorney general,’ vindicating a policy ‘of the highest priority,’ a prevailing plaintiff ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’ [Citations omitted.] It is clear that Congress intended to facilitate the bringing of discrimination complaints. 447 U.S. at 63, 100 S.Ct. at 2030. This court has interpreted Newman and the applicable legislative history to indicate that “[a] prevailing plaintiff in a § 1983 action should receive fees almost as a matter of course....” Busch e v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 50 U.S.L.W. 3278 (Oct. 13, 1981) (quoting Davis v. Murphy," }, { "docid": "14565026", "title": "", "text": "approximately thirty federal statutes authorized courts to award attorneys’ fees. Alyeska, 421 U.S. at 260 n.33, 95 S.Ct. at 1623 n.33. . Compare Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam) (prevailing plaintiffs in civil rights cases entitled to fee awards “unless special circumstances would render such an award unjust”), with Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (prevailing defendants in civil rights suits entitled to fee award only when plaintiffs underlying claim is “frivolous, unreasonable, or groundless”). See generally Roadway Express, Inc. v. Piper, 447 U.S. 752, 762, 100 S.Ct. 2455, 2462, 65 L.Ed.2d 488 (1980) (distinction between fee awards to civil rights plaintiffs and defendants “advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation”). . See, e.g., Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980) (fact that plaintiff “prevailed” through settlement rather than litigation does not compromise right to counsel fees under Civil Rights Attorney’s Fees Awards Act of 1976). . See, e.g., Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc). . Complaint, Kennedy v. Department of Human Resources, District of Columbia Office of Human Rights Docket No. 9--DC-598 (filed Aug. 22, 1979), Joint Appendix (J.A.) at 19-20. On May 14, 1980, this complaint was dismissed by the Office of Human Rights because investigation revealed no evidence to support the discrimination allegations. Memorandum from Anita Bellamy Shelton, Director, Equal Employment Opportunity, Office of Human Rights, to James Buford, Director, Office of Human Rights (May 14, 1980), J.A. at 26. After that dismissal, however, the complaint was remanded to the Office of Human Rights for further consideration. See Kennedy v. Whitehurst, 509 F.Supp. 226, 227 n.1 (D.D.C.1981). . Charge of Age Discrimination, Equal Employment Opportunity Commission Charge No. 032-798025 (Sept. 10, 1979), J.A. at 17-18. . An employee of the Equal Employment Opportunity Commission (EEOC)" }, { "docid": "18212721", "title": "", "text": "then moved for attorney’s fees under 42 U.S.C. § 1988. The district court denied the motion finding that “special circumstances exist that render such an award unjust.” Ackerley Communications, Inc. v. City of Salem, Oregon, No. 75-733-FR, slip op. at 3 (C.D.Or. Dec. 21, 1982) (hereinafter “Dist.Ct.Op.”). We review the district court’s denial of attorney’s fees under the abuse of discretion standard. Sethy v. Alameda County Water District, 602 F.2d 894, 897 (9th Cir.1979), cert. denied, 444 U.S. 1046, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980). A determination by the district court will be reversed “where the district court misperceives the law or does not consider relevant factors and thereby misapplies the law.” In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1358 (9th Cir.1981), cert. denied, 455 U.S. 990, 102 S.Ct. 1615, 71 L.Ed.2d 850 (1982). II Section 1988 states, in pertinent part, that “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The court’s discretion under section 1988 has been interpreted very narrowly. To act as an effective incentive for injured parties to seek judicial relief for civil rights violations, “fee awards should be the rule rather than the exception.” Teitelbaum v. Sorenson, 648 F.2d 1248, 1251 (9th Cir.1981). Thus, a prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968), cited in S:Rep. No. 94-1011, 94th Cong., 2d Sess at 4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908 at 5910. Here, the district court held that “special circumstances” justifying denial of a fee award did exist, based on four considerations. We will consider each in turn. A. Motivation The district court determined that appellant’s primary motivation in bringing suit was financial gain, rather than an attempt to vindicate First Amendment rights. “The First Amendment claim was a means for the plaintiff, not an end.” Dist.Ct.Op. at 4. The fact that a party" }, { "docid": "7123783", "title": "", "text": "28 U.S.C.A. § 1988 (West 1981), which provides in pertinent part: In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. Special Circumstances In enacting § 1988, Congress stated that “a party seeking to enforce the rights protected by the statutes covered by [this Act], if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 966, 19 L.Ed.2d 1263] (1968).” S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad.News 5908, 5912. This “Newman rule” has consistently been applied by this Court to prevailing plaintiffs seeking attorney’s fees under § 1988. Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir.1980); Gates v. Collier, 616 F.2d 1268, 1275 (5th Cir.1980), modified on other grounds, 636 F.2d 942 (5th Cir.1981); Universal Amusement Co., Inc. v. Hofheinz, 616 F.2d 202, 204-05 (5th Cir.1980), modified on other grounds, 646 F.2d 996 (5th Cir.1981); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir.1978), vacated sub nom. on other grounds, Morrow v. Finch, 642 F.2d 823 (5th Cir.1981). In reviewing a district court’s denial of § 1988 attorney’s fees, we are limited to determining whether the court abused its discretion. The discretion to deny § 1988 fees is, however, extremely narrow. Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955 (5th Cir.1981). Absent special circumstances that would render such an award unjust, a prevailing plaintiff should be awarded § 1988 fees “as a matter of course.” Gates, 616 F.2d at 1275 (emphasis added). However, the special circumstances exception to the general rule requiring the award of fees is an extremely limited one. Ellwest, 653 F.2d at 955. Here, aside from a naked assertion of discretionary authority, the" }, { "docid": "19815859", "title": "", "text": "court awarded the full amount requested by Busche pursuant to the Civil Rights Attorney’s Fees Awards Act, which provides that in civil rights actions under § 1983 and certain other statutes, “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988 (1976). This discretion is limited by the Act’s legislative history, which provides that the successful plaintiff “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” S.Rep.No. 94-1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Ad. News 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)). Burkee does not contest the number of hours expended by Busche’s attorneys or the reasonableness of the $50 hourly rate. Rather, he contends that the award was based on an erroneous understanding of the relevant legal standards. Fees should be awarded, Burkee urges, only to those parties who bring actions “in the capacity of private attorneys general” to enforce the civil rights statutes. He seeks, in effect, to limit the application of § 1988 to class actions that seek equitable relief. This narrow construction contradicts the unqualified language of the Act. Section 1988 explicitly extends to all § 1983 actions, without regard to the number of plaintiffs or type of relief sought. See Konczak v. Tyrrell, 603 F.2d 13 (7th Cir. 1979); Comment, Attorney’s Fees in Damage Actions Under the Civil Rights Attorney’s Fees Awards Act of 1976, 47 U.Chi.L.Rev. 332 (1980). A prevailing plaintiff in a § 1983 action “should receive fees almost as a matter of course,” Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978), unless special circumstances render such an award unjust. Burkee has indicated no such circumstances in the present case. Burkee also argues that the award of fees in this case was improper because Busche was not a “prevailing party” within the meaning of § 1988 since he did not succeed in his claims regarding the constitutional sufficiency of the Commission" }, { "docid": "13613663", "title": "", "text": "§ 1973l (e), while the latter permits a court, “in its discretion, ... [to] allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs,” 42 U.S.C. § 1988(b). Both provisions are designed to “encourag[e] private litigants to act as ‘private attorneys general’ in seeking to vindicate the civil rights laws.” Donnell, 682 F.2d at 245. As a result, the two provisions are construed alike. Id. at 245 n. 7 (citing Riddell v. Nat’l Democratic Party, 624 F.2d 589, 543 (5th Cir.1980)); see also Buckhannon, 532 U.S. at 603 n. 4, 121 S.Ct. 1835 (recognizing that § 1973Z (e) and § 1988(b) have been interpreted in a consistent manner). Requests for attorney fees pursuant to § 1973l (e) and § 1988(b) generally implicate two questions of law. The first is whether the party seeking recovery of attorney fees is a prevailing party. If so, then a fee award ordinarily should be granted. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989) (observing that a party that prevails in § 1988 litigation “ordinarily” is entitled to attorney fees (internal quotations and citation omitted)); Donnell, 682 F.2d at 245 (“[T]he legislative history [of § 1973l (e) ] makes clear that a prevailing party usually should recover fees.”). The second is whether a court should exercise its discretion not to award attorney fees because there are “special circumstances [that] would render such an award unjust.” Newman v. Piggie Park Enters., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). 1. Prevailing Party Precedent The phrase “prevailing party” is a legal term of art, Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835, which has been addressed by the Supreme Court in multiple decisions. See, e.g., Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (“A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendent lite or at the conclusion of the litigation.”); Hewitt" }, { "docid": "14324156", "title": "", "text": "VII of the Civil Rights Act of 1964 authorizes the allocation of attorney’s fees in cases brought under the statute. It provides: In any action or proceeding under ... (Title VII) the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.. .” 42 U.S.C. § 2000e-5(k). The purpose of this section is to ensure that injured parties will not be discouraged from seeking judicial redress of their grievances by the fear of incurring large attorney’s fees, Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). Congress was concerned that unless adequate compensation was provided by the Act, competent attorneys would have little incentive to represent plaintiffs in employment discrimination litigation. Newman v. Piggie Park Enterprises, Inc., id.; Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719-20 (5th Cir. 1974). However, the statute imposes two requirements—that the attorney’s fees be “reasonable” in amount, and that they be awarded only to parties who have “prevailed”. I. The “Prevailing Party” Issue It is now settled that a party who prevails through a settlement rather than through litigation is equally entitled to attorney’s fees as a prevailing party. Maher v. Gagne, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980). However, because a settling plaintiff almost invariably does not obtain all the benefits which he set out to gain at the commencement of the litigation, the extent to which he prevailed under the terms of the settlement is often unclear. The First Circuit addressed this issue specifically in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978), a class action suit under 42 U.S.C. § 1983. Protective custody inmates at the New Hampshire State Prison alleged that various conditions of their confinement violated the Constitution. After a trial, the district court upheld the prison authorities on some issues and granted relief to the class with respect to others. On the question of law library access, the court found for the inmates. Nadeau v. Helgemoe, 423 F.Supp. 1250 (D.N.H.1976). The Court of Appeals affirmed" }, { "docid": "20669180", "title": "", "text": "“the plaintiffs’ overall success in this case and the nature of the relief awarded” made this ease fall within “that category of cases described by the Supreme Court in Farrar where the most appropriate and reasonable fee award is no fee at all.” Id. at 85. Based upon the record before us, we disagree with the district court’s ruling that the present case fits within that narrow category of cases where no attorney’s fees should be awarded. The general rule under § 1988 is that “the prevailing party ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67 (1989) (quoting Newman v. Piggie Park Ents., Inc. 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)); see Dahlem, 901 F.2d at 1514. In enacting § 1988, Congress pointed out that “[a]ll of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.” S.Rep. No. 1011, 94th Cong., 2nd Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910. In view of this clearly expressed congressional intent, our circuit has recognized that the “district court’s discretion to deny fees to a prevailing party is quite narrow.” Wilson, 819 F.2d at 951 (citing J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985)) (“[T]here are few cases denying attorney fees to a prevailing party as unjust under § 1988,” and “[a] strong showing of special circumstances is necessary to support a denial.”). In analyzing whether a plaintiffs victory is purely technical or de mininis, we look for guidance to Justice O’Connor’s concurrence in Farrar which distills various principles from the Court’s § 1988 case law into a three-part test to determine whether a prevailing party achieved enough success to be entitled to an award of attorney’s fees. The “relevant indicia of success” in such cases are: (1)" }, { "docid": "21595535", "title": "", "text": "failing to award them attorney's fees pursuant to § 1988. Also, the Hatfields contend that the court erred in denying Rule 11 sanctions against Hayes and his attorney. II. We turn first to the Hatfields’ claim for attorney’s fees. The general rule in the United States is that both parties to a lawsuit bear their own attorney’s fees. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975). Congress, however, has promulgated numerous statutory exceptions to this general rule. One such exception, 42 U.S.C. § 1988, provides in part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court determined that a plaintiff is a “prevailing party” for attorney’s fees purposes “if [he] succeed[s] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.” Id. at 433, 103 S.Ct. at 1939 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); see also Texas State Teachers Ass’n v. Garland Indep. School Dist., — U.S. -, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The Supreme Court describes this test as “a generous formulation.” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. Prevailing parties in actions to which a fee-shifting statute applies, then, “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). “[A]bsent special circumstances, a prevailing party should be awarded section 1988 fees as a matter of course.” Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir.1983) (emphasis in original). Appellate review of a denial of § 1988 attorney’s fees is governed by the abuse of discretion standard, but a district court’s discretion in denying attorney’s fees to prevailing parties" }, { "docid": "2380149", "title": "", "text": "SETH, Chief Judge. Appellant challenged the constitutionality of a city ordinance and prevailed. The ordinance conditioned the offering of religious matter door-to-door upon obtaining a permit. The trial court found unbridled discretion in the sheriff to disapprove such permits and accordingly held the ordinance unconstitutional. Subsequently, appellant filed a motion for an award of reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. The trial judge denied the motion. The sole issue on appeal is whether the trial judge erred in denying the motion for attorney’s fees. A prevailing party in a civil rights action such as this is ordinarily entitled to reasonable attorney’s fees, 42 U.S.C. § 1988, unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263. Congress contemplated this standard in enacting the attorney’s fee award amendment to § 1988. S.Rep.No. 1011, 94th Cong., 2d Sess. 4, reprinted in [1976] U.S.Code Cong. & Admin.News, p. 5908. This in part states: “It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S.2278, if successful, ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 [88 S.Ct. 964, 19 L.Ed.2d 1263] (1968).” See Francia v. White, 594 F.2d 778 (10th Cir.). 42 U.S.C. § 1988 reads in applicable part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The lower court based its denial of the motion for attorney’s fees on its finding that defendants acted in good faith and that an award of attorney’s fees would be unjust. The attorney’s fee amendment to § 1988 contains no suggestion that there is a need to establish" }, { "docid": "9666341", "title": "", "text": "Fernández is a former director of ACLU’s New York Office, former director of litigation at the Puerto Rico Office of Legal Services and a former professor on the University of Puerto Rico Law School. His legal practice includes constitutional and civil rights litigations as well as appellate practice. Attorney Tió charges at a rate of $250.00 per hour in Court time and $200.00 per hour out of Court time. For out of Court work he requested compensation in the amount of $43,300.00 and $5,250.00 as compensation for in Court work. A total compensation of $48,550.00 is requested. Further, Plaintiffs submitted a Bill of Costs for $1,472.38 for costs authorized pursuant to 28 U.S.C. § 1920. Furthermore counsel incurred in additional expenses which are not authorized under Section 1920 but which allegedly must be covered in accordance with the fee-shifting statute. II. Right to Attorney’s Fees In Civil Rights cases a prevailing party is entitled to statutory costs and reimbursement for litigation expenses and attorneys fees.42 U.S.C. § 1988. Accordingly, courts are in the obligation to award attorneys’ fees to a prevailing party in an action brought pursuant to 42 U.S.C. § 1983. The laws as to civil rights compensation of attorneys’ fees is that “[u]n-less special circumstances would render such award unjust attorney’s fees must be awarded.” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); de Jesus v. Banco Popular, 918 F.2d 232 (1st Cir.1990). Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 293 (1st Cir., 2001) (“awards in favor of prevailing civil rights plaintiffs are virtually obligatory.”) Plaintiffs are also entitled to litigation costs beyond those statutorily allowed under 28 U.S.C. § 1920. A plaintiff prevails when actual relief on the merits of his claim “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d at 293. The fact" }, { "docid": "1608991", "title": "", "text": "fees and expenses in connection with any further proceedings. . This case was reassigned to me after the death of Judge Gorbey. I ordered the submission of additional evidence and briefs on the GS-12 promotion question. . This section provides: In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. This provision is specifically applicable to employment discrimination suits brought against the federal government under the Equal Employment Opportunity Act of 1972. 42 U.S.C. § 2000e-16(d). A prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but “special circumstances,” i. e., where an award would be unjust. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 417-18, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). This case presents no “special circumstances” which would dictate denial of an award of attorney’s fees. Rather, an award here will serve to encourage representation of similarly situated plaintiffs by competent counsel thereby vindicating “a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). . Although Sweetlowich, Bagby, and Hughes, supra, concerned counsel fee awards to prevailing parties under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, these cases are instructive as to the appropriate reading of 42 U.S.C. § 2000e-5(k) since the provision for counsel fees in section 1988 was patterned in part after section 2000e-5(k). Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989 n. 4, 64 L.Ed.2d 670 (1980). . I adopt the definition of complexity of issues propounded in Meisel v. Kremens, 80 F.R.D. 419, 425 (E.D.Pa.1978) and subsequently followed in Swicker v. William Armstrong & Sons, Inc., supra, 484 F.Supp. at 767 n. 1: “[A] legal issue may be said to be complex where it was ‘unsettled when the complaint was filed [or]" }, { "docid": "9666342", "title": "", "text": "award attorneys’ fees to a prevailing party in an action brought pursuant to 42 U.S.C. § 1983. The laws as to civil rights compensation of attorneys’ fees is that “[u]n-less special circumstances would render such award unjust attorney’s fees must be awarded.” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); de Jesus v. Banco Popular, 918 F.2d 232 (1st Cir.1990). Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d 288, 293 (1st Cir., 2001) (“awards in favor of prevailing civil rights plaintiffs are virtually obligatory.”) Plaintiffs are also entitled to litigation costs beyond those statutorily allowed under 28 U.S.C. § 1920. A plaintiff prevails when actual relief on the merits of his claim “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Gay Officers Action League v. Commonwealth of Puerto Rico, 247 F.3d at 293. The fact that the plaintiffs did not prevail on every single theory that they brought before the Court is no impediment to the recovery of attorneys’ fees and costs. Hensley v. Eckerhart 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) When the claims are interrelated the fact that plaintiff did not prevail in every single claim does not justify the reduction of the award. Lipsett v. Blanco 975 F.2d 934, 941 (1st Cir.1992). On the other hand, obtaining equitable relief does not automatically confer a prevailing party status for purposes of the Fees Act. 42 U.S.C. § 1988, see also Texas State Teachers Ass’n v. Garland Indep Sch Dist, 489 U.S. 782, 792-93, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Rhodes v. Stewart, 488 U.S. 1, 3-4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988). “Plaintiffs may be considered ‘prevailing parties’ for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. 1933," }, { "docid": "20323102", "title": "", "text": "also argue that they have acted in good faith, so that “special circumstances” exist which make it unjust to make them pay the Plaintiffs’ attorney fees. Although section 1988 does not require the court to award an attorney’s fee to the prevailing party in every ease, the court’s discretion is extremely limited: “the prevailing party ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’ ” Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67, 72 n. 1 (1989) (quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1266 (1968); Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40, 47-48 (1983)); see also Robinson v. Kimbrough, 652 F.2d 458, 464 (5th Cir.1981). Moreover, because the special circumstances exception is a judicially imposed provision not found within the text of section 1988, the exception “should be narrowly construed so as not to interfere with the congressional purpose in passing [section 1988].” Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir.1985) (en banc); see also Hatfield v. Hayes, 877 F.2d 717, 720 (8th Cir.1989). The burden of demonstrating special circumstances falls squarely on the Defendants, who must make a “strong showing” to justify denial of attorney’s fees and costs to prevailing plaintiffs. Martin v. Heckler, supra, 773 F.2d at 1150; Riddell v. National Democratic Party, supra, 624 F.2d at 543. “Defendants’ good faith, lack of culpability, or prompt remedial action do not warrant a denial of fees under the special circumstances preclusion.” Martin v. Heckler, supra, 773 F.2d at 1150. Further, “[i]t is also not a special circumstance sufficient to preclude a fee award against the state defendant that the state merely acted pursuant to federal regulation.” Id.; see also Rose v. Heintz, 806 F.2d 389, 392 (2d Cir.1986). The State Defendants contend that because the DeGrandy Court, and not the State, created Congressional District Three, they did not deny the plaintiffs any right, privilege or immunity guaranteed by the constitution, and are thus" } ]

[ { "docid": "22747749", "title": "", "text": "First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (“ ‘[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question’ ” (quoting Caminetti v. United States, 242 U. S. 470, 491 (1917))). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e. g., Shreveport Rate Cases, 234 U. S. 342 (1914); Southern R. Co. v. United States, 222 U. S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 (“[F]or example, the destruction of an aircraft (18 U. S. C. § 32), or... thefts from interstate shipments (18 U. S. C. § 659)”). Finally, Congress’ commerce authority includes the power to regulate those ac tivities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i. e., those activities that substantially affect interstate commerce, Wirtz, supra, at 196, n. 27. Within this final category, admittedly, our case law has not been clear whether an activity must “affect” or “substantially affect” interstate commerce in order to be within Congress’ power to regulate it under the Commerce Clause. Compare Preseault v. ICC, 494 U. S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27 (the Court has never declared that “Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities”). We conclude, consistent with the great weight of our case law, that the proper test requires an analysis of whether the regulated activity “substantially affects” interstate commerce. We now turn to consider the power of Congress, in the light of this framework, to enact § 922(q). The first two categories of authority may be quickly disposed of: § 922(q) is not a regulation of the" } ]

[ { "docid": "8096605", "title": "", "text": "category. See United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996) (“[Although it may be true that Congress must regulate ... even mere possessions ... in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce. This rationale is therefore an aspect of Congress’s broader power to regulate things ‘affecting’ interstate commerce.”). Consequently, a majority of circuits that have considered Lopez challenges to other possession offenses have upheld the respective statutes only under Lopez’s third category. See United States v. Knutson, 113 F.3d 27, 31 (5th Cir.1997) (addressing 18 U.S.C. § 922(o)); Rybar, 103 F.3d 273, 283 (“we hold, that the authority of Congress to enact § 922(o) under the Commerce Clause can be sustained under the third category identified” in Lopez); Kenney, 91 F.3d 884 (§ 922(o)); United States v. Michael R., 90 F.3d 340 (9th Cir.1996) (18 U.S.C. § 922(x)(2)) . Like those statutes, § 2315 by its terms does not regulate the passage of goods. Rather, by prohibiting transactions in, and even possession of, property once it has been in the channels of interstate commerce, the statute inhibits— i.e., affects — interstate commerce in such property without directly regulating the property’s passage in the channels of commerce. As a result, it too can be upheld only under Lopez’s third category. Although I agree for the most part with the district court’s sentencing approach, I dissent from the majority’s affirmance of Trupin’s sentence, which fails to set forth principles under which Trupin should have been sentenced. The commentary to the applicable sentencing guideline, section 2B1.1, states that [l]oss means the value of the property taken, damaged, or destroyed.... Loss does not include the interest that could have been earned had the funds not been stolen.... In stolen property offenses (receiving, transporting, transferring, transmitting, or possessing stolen property), the loss is the value of the stolen property determined as in a theft offense. U.S.S.G. § 2B1.1, comment, (n. 2). Underlying this commentary is a general policy favoring loss valuation as of the time" }, { "docid": "1726177", "title": "", "text": "nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.”). The rationale that Congress can, on a blank slate, criminalize possession under the interstate Commerce Clause in order to regulate “the demand side of the market” can be applied to the possession of anything. Following Lopez, § 922(o) cannot be upheld as a regulation which substantially affects interstate commerce. CONCLUSION Regardless of one’s view of the wisdom of banning the private possession of machine-guns, the question before this court is whether the Commerce Clause grants Congress the authority to ban private, intrastate possession of a machinegun with no showing that the prohibition is connected in any way to interstate commerce or is part of a broader federal regulatory scheme. Congress’s commerce powers are broad, reaching even Roscoe Filburn’s wheat field in Ohio. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Lopez, however, closely controls this case. Lopez does not permit Congress, acting pursuant to the Commerce Clause, to criminalize the mere intrastate possession of maehineguns without some indication that the possession ban is necessary to the regulation of, or has some other substantial tie to, interstate commerce. Section 922(o)’s ban on the mere possession of a machinegun exceeds Congress’s authority under the Commerce Clause. . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Rombo, 74 F.3d 948 (9th Cir.), cert. denied, — U.S. —, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). . A brief survey of recent federal cases reveals many examples. See, e.g., Smith v. United States, 508 U.S. 223, 224, 113 S.Ct 2050, 2052, 124 L.Ed.2d 138 (1993) (defendant in possession of a fully automatic MAC-10 and MAC-11 machine gun attempts to buy" }, { "docid": "6752974", "title": "", "text": "participation therein are well-regulated by the State of Oklahoma. Accord Wright, 117 F.3d at 1274 (“[T]he substantial segment of the population comprising the unorganized militia is not well regulated as that term was intended by the drafters of the Second Amendment.”); see also Oakes, 564 F.2d at 387 (noting that technical membership in the state militia is insufficient to show a Second Amendment violation); Hale, 978 F.2d at 1020 (same). Nor has Haney submitted any evidence that machineguns of the sort he possessed are used by the militia, or that his possession was connected to any sort of militia service. In sum, § 992(o) does not impair the state’s ability to maintain a well-regulated militia and therefore does not violate the Second Amendment. II. Commerce Clause Article I, Section 8 of the Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” Under this Commerce Clause, Congress may regulate three broad categories of activities: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). Haney argues that § 922(o) exceeds Congress’s power under the Commerce Clause by regulating purely intrastate activity. We note at the outset that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause. See United States v. Franklyn, 157 F.3d 90 (2d Cir.1998); United States v. Wright, 117 F.3d 1265 (11th Cir.1997), amended on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Beuckelaere, 91" }, { "docid": "23553565", "title": "", "text": "(i) are associated with criminal activity and (ii) tend to travel in interstate commerce (thereby thwarting the regulatory efforts of the States). We therefore agree with the Third, Fifth, Seventh and Eleventh Circuits, which have held that Congress had a rational basis for finding that the machine gun trade “substantially affects” interstate commerce. See United States v. Wright, 117 F.3d 1265, 1270-71 (11th Cir.1997), vacated in part on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27, 30-31 (5th Cir.1997); Rybar, 103 F.3d at 282-83; Kenney, 91 F.3d at 890-91. We further agree that prohibiting possession of these weapons is a reasonable means of freezing, and ultimately eliminating, the largely interstate market for them. 2. Reasonable Means. Section 922(o)’s prohibition does not apply to machine guns lawfully possessed prior to the effective date of the statute, May 19, 1986. See 18 U.S.C. § 922(o)(2)(B). The Bureau of Alcohol, Tobacco and Firearms has interpreted § 922(o) to ban private possession and transfer of all new machine guns, plus all existing machine guns that were not lawfully possessed prior to the effective date. See 27 C.F.R. § 179.105(a) (1988). The Bureau consequently approves no applications to make, transfer, or import machine guns for sale or distribution, except to government entities. Id.; see also Kenney, 91 F.3d at 885. The effect of § 922(o), then, is to freeze the number of legally owned machine guns at the level prevailing in 1986. See Kenney, 91 F.3d at 885. We think that this is a reasonable measure for choking off the traffic in machine guns, which may be constricted on the supply side through prohibition of transfers as well as on the demand side by criminalizing possession. “[Ijllegal possession of a machinegun cannot occur without an illegal transfer.” Beuckelaere, 91 F.3d at 784; see also Rybar, 103 F.3d at 283 (same). “By regulating the market in machineguns, including regulating intrastate machinegun possession, Congress has effectively regulated the interstate trafficking in machineguns.” United States v. Rambo, 74 F.3d 948, 952 (9th Cir.1996). It may be that the possession of a single" }, { "docid": "8096604", "title": "", "text": "S.Ct. 348, 357, 13 L.Ed.2d 258 (1964) (“The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution”) (quoting Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 196-97, 61 L.Ed. 442 (1917)); United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609 (1941) (“Congress ... is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious”). “Thus, it seems clear that the first category of Commerce Clause authority outlined in Lopez concerns Congress’s power to regulate, for economic or social purposes, passage in interstate commerce of either people or goods.” United States v. Rybar, 103 F.3d 273, 288-89 (3d Cir.1996) (Alito, J., dissenting), petition for cert. filed, 65 U.S.L.W. 3755 (U.S. April 30, 1997) (No. 96-1738). Possession, as opposed to transportation, does not use the channels of interstate com- meree, and therefore does not fall within the first Lopez category. See United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996) (“[Although it may be true that Congress must regulate ... even mere possessions ... in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce. This rationale is therefore an aspect of Congress’s broader power to regulate things ‘affecting’ interstate commerce.”). Consequently, a majority of circuits that have considered Lopez challenges to other possession offenses have upheld the respective statutes only under Lopez’s third category. See United States v. Knutson, 113 F.3d 27, 31 (5th Cir.1997) (addressing 18 U.S.C. § 922(o)); Rybar, 103 F.3d 273, 283 (“we hold, that the authority of Congress to enact § 922(o) under the Commerce Clause can be sustained under the third category identified” in Lopez); Kenney, 91 F.3d 884 (§ 922(o)); United States v. Michael R., 90 F.3d 340 (9th Cir.1996) (18 U.S.C. § 922(x)(2)) . Like those statutes, § 2315 by its terms does not regulate the passage of goods. Rather," }, { "docid": "23203138", "title": "", "text": "552 F.3d 709, 713 (8th Cir.2009); Hinckley, 550 F.3d at 939-40; United States v. Lawrance, 548 F.3d 1329, 1336-37 (10th Cir.2008); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir.2009). Congress’ commerce clause power is derived from Article I, section 8 of the United States Constitution, which provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cls. 1 & 3. Congress may regulate intrastate activity so long as the means employed by Congress are “reasonably adapted” to the attainment of a legitimate end under the commerce power. See United States v. Darby, 312 U.S. 100, 121, 61 S.Ct. 451, 85 L.Ed. 609 (1941). The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), synthesized and articulated the boundaries of this power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited possession of a firearm within a thousand feet of a school. The Supreme Court struck down the statute, identifying three categories of activity that Congress may regulate under its commerce power: (1) “Congress may regulate the use of the channels of interstate commerce;” (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;” and (3) “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624 (internal citations omitted). SORNA requires the government to prove that Shenandoah traveled in interstate or foreign commerce, and thereafter failed to register as required by SORNA. See 18 U.S.C. § 2250(a)(2)(B); May, 535 F.3d at 921. SORNA thus derives its authority from each prong of Lopez, and most specifically, the ability to regulate “persons or things in interstate commerce” and “the use of the channels of interstate commerce.” Shenandoah was undeniably a" }, { "docid": "10118488", "title": "", "text": "As such, and quite unlike § 922(q), deference to Congress’s accumulated institutional expertise is appropriate. Congress did not alter or repudiate any of its prior findings when it enacted § 922(o) under the Firearm Owner’s Protection Act (FOPA). In fact, Congress specifically noted that one of the aims of the FOPA was “to strengthen the Gun Control Act of 1968 to enhance the ability of law enforcement to fight violent crime and narcotics trafficking.” Thus, when we read § 922(o) in pari materiae with its legislative pedigree, we see clearly that Congress views “the availability of machineguns, violent crime, and narcotics trafficking” as parts of one larger problem. Even if we were to disagree with that assessment, we cannot say that Congress could not have had a rational basis for its conclusion. Ill CONCLUSION We hold that Congress could have had a rational basis for concluding that § 922(o) regulates conduct that has a substantial effect on interstate commerce, and that § 922(o) is not unconstitutional. Therefore, we need not consider whether the statute would be constitutional under either of the other two Lopez categories. As such, Knutson’s conviction for unlawfully possessing a maehinegun in violation of § 922(o) is AFFIRMED. . This issue was the subject of our rehearing en banc in United States v. Kirk, 70 F.3d 791, (5th Cir.1995), vacated, 78 F.3d 160, aff'd en banc by an equally divided court, 105 F.3d 997 (5th Cir.1997). . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996) (upholding § 922(o) under the third of three possible categories of activity that Congress may regulate under the Commerce Clause, as a regulation of activities having a substantial effect on interstate commerce); United States v. Kenney, 91 F.3d 884 (7th Cir.1996) (upholding § 922(o) under the third category, as a regulation of activities having a substantial effect on interstate commerce); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996) (upholding § 922(o) under all three Lopez categories); United States v. Rambo, 74 F.3d 948 (9th Cir.) (upholding § 922(o) under the first category, as a regulation of channels of interstate" }, { "docid": "13269932", "title": "", "text": "Post Facto Clause violations. In United States v. Felts, we held that such an application of SORNA does not violate the Ex Post Facto Clause. 674 F.3d 599, 605-06 (6th Cir. 2012). C. Commerce Clause Challenge Coleman’s second constitutional challenge alleges that SORNA exceeds the ambit of Congress’s power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. In United States v. Lopez, the Supreme Court articulated three broad categories of activity that Congress may regulate through its commerce power: First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (internal citations omitted). We invalidate statutes only if they bear no rational relationship to any of these powers. United States v. Faasse, 265 F.3d 475, 481 (6th Cir.2001) (en banc) (citing Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981)). Coleman argues that SORNA fits into none of the Lopez categories. He contends that SORNA exceeds the first prong because, due to the fact that registration is not required until after the offender exits the stream of interstate commerce to settle in a given location, SORNA lacks a nexus to interstate commerce. He maintains that SORNA exceeds the second prong because its focus on offender registration, as opposed to offender travel, decouples it from any “instrumentality of interstate commerce” that Congress constitutionally may regulate. Finally, he alleges that SORNA exceeds the third prong because it regulates activity with no cognizable relation to interstate commerce, as neither travel nor registry “substantially affect” commerce. None of these arguments is availing. We find that SORNA fits comfortably within the first two Lopez prongs. Accord United States v." }, { "docid": "9797094", "title": "", "text": "employees \"employed in an enterprise engaged in commerce or in the production of goods for commerce.\" See 392 U.S. at 188, 88 S.Ct. 2017. The Supreme Court held that the constitutionality of the 1961 extension of employees covered by the Act was \"settled by the reasoning of Darby itself.” Id. Therefore Wirtz, the paradigmatic category 3 case according to Lopez, is in fact a category 1 case as well. The confluence of categories 1 and 3 demonstrates that while the categories are useful as a synopsis of the Supreme Court’s Commerce Clause jurisprudence, the attempt to fit a regulation squarely within one category can prove elusive, even fruitless. . The confluence of Lopez categories 1 and 3 is also apparent from the cases where other circuits have upheld the Firearm Owners Protection Act of 1986, (\"FOPA”), which makes it unlawful to \"transfer or possess a machine gun.” 18 U.S.C. § 922(o) (1994). FOPA has been upheld as a Lopez category 3 regulation of an activity with a substantial effect on interstate commerce by the Second, Third, Fifth, Seventh, Tenth and Eleventh Circuits. See United States v. Franklyn, 157 F.3d 90, 96 & n. 3 (2d Cir.1998) (not deciding whether FOPA fell within Lopez category 1); United States v. Wright, 117 F.3d 1265, 1270 (11th Cir.1997), vacated on other grounds, 133 F.3d 1412 (1998); United States v. Knutson, 113 F.3d 27, 30 (5th Cir.1997) (avoiding the issue of category 1 to prevent controversy); United States v. Rybar, 103 F.3d 273, 283 (3d Cir.1996); United States v. Kenney, 91 F.3d 884, 890 (7th Cir.1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995). The FOPA has been upheld as a Lopez category 1 regulation of the channels of interstate commerce by the Sixth and Ninth Circuits. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.1996); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.1996); see also United States v. Kirk, 70 F.3d 791, 796-97 (5th Cir.1995), vacated, 78 F.3d 160 (1996). Likewise, the First Circuit has upheld under Lopez category 3 section 110201 of the Violent Crime Control" }, { "docid": "7741590", "title": "", "text": "United States v. Franklyn, 157 F.3d 90, 93, 96-97 (2d Cir. 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 887, 142 L.Ed.2d 786 (1999); United States v. Wright, 117 F.3d 1265, 1267, 1270-71 (11th Cir.1997), vacated in part on rehearing on other grounds by United States v. Wright, 133 F.3d 1412 (11th Cir. 1998); United States v. Knutson, 113 F.3d 27, 31 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273, 284-85 (3d Cir.1996), cert. denied, 522 U.S. 807, 118 S.Ct. 46, 139 L.Ed.2d 13 (1997); United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996); United States v. Beuckelaere, 91 F.3d 781, 784-85 (6th Cir. 1996); United States v. Hale, 978 F.2d 1016, 1018 (8th Cir. 1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993). . Two days after oral argument in this appeal, the Supreme Court decided National Federation of Independent Business v. Sebelius, — U.S. -, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012), which held that the federal statute requiring individuals to purchase health insurance is a valid exercise of Congress’s tax power. Five justices also agreed that the Commerce Clause did not authorize this statute. There has been considerable debate about whether the statements about the Commerce Clause are dicta or binding precedent. See, e.g., David Post, Commerce Clause “Holding v. Dictum Mess” Not So Simple, The Volokh Conspiracy, (July 3, 2012, 8:17 AM), http ://www. volokh. com/2012/07/03/ commerce-clause-holding-v-dictum-mess-not-so-simple/. We need not resolve that issue here because National Federation of Independent Business involved a requirement that individuals take action. See Nat’l Fed’n of Indep. Bus., 132 S.Ct. at 2587 (Roberts, C.J.) (\"Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.”) (emphasis in original). In contrast, Section 922(o) involves a prohibí tion of conduct. Therefore, even if National Federation of Independent Business changed Supreme Court precedent regarding the Commerce Clause, we conclude it would not overrule Stewart." }, { "docid": "14045726", "title": "", "text": "“[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” “We have discretion to correct an error under the plain error standard where (1) an error occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affects the fairness, integrity or pub- lie reputation of judicial proceedings.” United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir.2005) (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 1777-79, 123 L.Ed.2d 508 (1993)). The error must be “plain” at the time of appellate consideration; the defendant is not required to establish that it was plain at the time of trial. A. We first conclude that, under Maxwell, error occurred because Smith’s purely intrastate, noncommercial production and possession of child pornography is not subject to Commerce Clause regulation. We begin with the simple principle that “Congress can legislate only within the ambit of the specific powers the Constitution confers on it.” Maxwell, 386 F.3d at 1053-54. The Constitution grants Congress the authority “[t]o regulate Commerce with foreign Nations, and among the several States.” U.S. Const, art. I, § 8, cl. 3. In Lopez, the Supreme Court explained that there are “three broad categories of activity that Congress may regulate under its commerce power:” First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. at 1629-30 (citations omitted). As in Maxwell, we have no difficulty concluding that the challenged statutes govern neither the channels nor the instrumentalities of interstate commerce. See Maxwell, 386 F.3d at 1055. Although Smith, unlike Maxwell, was convicted for production under § 2251(a) in addition to possession under § 2252A(a)(5)(B), this distinction does not bring" }, { "docid": "8678355", "title": "", "text": "determine, as always, “whether a rational basis existed for concluding that a regulated activity sufficiently affected interstate commerce.” Id. at 557, 115 S.Ct. at 1629; see also United States v. Kenney, 91 F.3d 884, 886 (7th Cir.1996) (“Our task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were ‘reasonably adapted to the ends permitted by the Constitution.’ ”) (quoting Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 275, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981)). Whether or not Congress had a rational basis to conclude that the possession or transfer of machineguns has a sufficient connection with interstate commerce depends on whether this activity falls within any of the three categories of activities that Congress has authority to regulate under the Commerce Clause: (1) the use of channels of interstate commerce; (2) instrumentalities of and persons or things in interstate commerce; and (3) intrastate activities that substantially affect interstate commerce. Lopez, 514 U.S. at 557-61, 115 S.Ct. at 1629-30. Since Lopez, several circuits have concluded that § 922(o) regulates channels of or things in interstate commerce. Although § 922(o) most often will regulate channels of and things in interstate commerce, its reach extends beyond these two categories by criminalizing the possession of guns that have never been a part of interstate commerce. For example, a machine-gun may be created by converting a non-automatic gun, and machineguns may also be manufactured and sold within a single state. See Kenney, 91 F.3d at 889. Because § 922(o) has no jurisdictional element, it has the potential to criminalize the possession of such guns that have never traveled in interstate commerce. We therefore conclude, in accord with the Third and Seventh Circuits, that § 922(o) cannot be justified solely as a regulation of channels or things in interstate commerce, but must instead be analyzed under the third Lopez category as a regulation of activities that substantially affect interstate commerce. See United States v. Rybar, 103 F.3d 273, 283 (3d Cir.1996);" }, { "docid": "8877501", "title": "", "text": "such an effect, these steps are not too much to demand to protect our system of constitutional federalism. I. In Lopez, the Supreme Court identified “three broad categories” of legislation permitted under the Commerce Clause: (1) regulation of “the use of the channels of interstate commerce,” (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) regulation of “activities that substantially affect interstate commerce.” — U.S. at -— --, 115 S.Ct. at 1629-30. The majority in this case quite properly focuses its analysis primarily on the third of these categories — Congress’s power to regulate those “activities that substantially affect interstate commerce” — because this is plainly the category under which 18 U.S.C. § 922(o) must be analyzed. But panels in the Fifth, Sixth, Ninth, and Tenth Circuits have tried to shoehorn 18 U.S.C § 922(o) into the first or second categories, and the majority cannot bring itself to acknowledge these courts’ errors. Therefore, without embracing or repudiating the reasoning of these other courts, the majority writes: Whatever the category relied on, it is telling that each of our sister circuits has found that the regulation of machine gun transfer and possession comes within Congress’ power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, “[i]t appears that United States v. Lopez has raised many false hopes,” and that challenges based on Lopez “[ajlmost invariably” fail. Maj. Op. at 283. This approach requires me to discuss the first two categories and explain why I believe they are clearly inapplicable here. II. Regulation of the channels of commerce. As the majority notes (Maj. Op. at 283), panels in the Fifth, Sixth, and Ninth Circuits have upheld 18 U.S.C. § 922(o) as a regulation of “the use of the channels of interstate commerce.” Lopez, — U.S. at -, 115 S.Ct. at 1629. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.1996); United" }, { "docid": "2755528", "title": "", "text": "(4th Cir.1997), cert. denied, 523 U.S. 1136, 118 S.Ct. 1838, 140 L.Ed.2d 1089 (1998); United States v. Bird, 124 F.3d 667, 672-82 (5th Cir.1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998); Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C.Cir.1996), cert. denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997); United States v. Soderna, 82 F.3d 1370, 1373-74 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996); United States v. Dinwiddie, 76 F.3d 913, 919-21 (8th Cir.), cert. denied, 519 U.S. 1043, 117 S.Ct. 613, 136 L.Ed.2d 538 (1996); United States v. Wilson, 73 F.3d 675, 679-88 (7th Cir.1995), cert. denied, 519 U.S. 806, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996); Cheffer v. Reno, 55 F.3d 1517, 1519-22 (11th Cir.1995). Today, this Circuit aligns with the decisions of its sister courts of appeals and holds that FACE is a proper exercise of Congress’s Commerce Clause power. In United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a decision aptly described by this Court as changing the Commerce Clause landscape, see United States v. Parker, 108 F.3d 28, 29 (3d Cir.1997), the Supreme Court identified three broad categories of activity that Congress may regulate under its commerce power. Congress may: 1) “regulate the use of the channels of interstate commerce,” Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (citations omitted); 2) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce even though the threat may come only from intrastate activity,” Id. (citations omitted); and 3) “regulate those activities having a substantial relation to interstate commerce ... i.e., those activities that substantially affect interstate commerce.” Id. at 558-559, 115 S.Ct. 1624 (citations omitted). Although the judicial branch is the final arbiter of the constitutionality of a statute, courts review a congressional determination that it had the power to enact a particular piece of legislation with substantial deference. See Parker, 108 F.3d at 30; United States v. Bishop, 66 F.3d 569, 576-77 (3d Cir.1995). It is not our job to" }, { "docid": "16757836", "title": "", "text": "is a grant of plenary authority to Congress. This power, complete in itself, may be exercised to its utmost extent and is susceptible to no limits except for those prescribed in the Constitution. United States v. Kenney, 91 F.3d 884, 887 (7th Cir.1996) (citing Hodel v. Virginia Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981) (other citations omitted)). Accordingly, our task is merely to determine whether Congress could have had a rational basis for utilizing its Commerce Clause powers and to ensure that the regulatory means chosen were “reasonably adapted to the end permitted by the Constitution.” Id. (quoting Hodel, 452 U.S. at 276, 101 S.Ct. 2352). It is also up to the courts to ultimately decide whether Congress exceeded its constitutionally enumerated powers in enacting the statute at issue. Id. (citing United States v. Wilson, 73 F.3d 675, 680 (7th Cir.1995), cert. denied, — U.S. -, 117 S.Ct. 46, 136 L.Ed.2d 12 (1996)). The Commerce Clause gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, cl. 3. The Supreme Court has identified three areas of activity which may be regulated by Congress under the commerce power. First, it may regulate the use of the channels of interstate commerce. Second, Congress can regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though threats may only come from intrastate activities. Finally, Congress can regulate activities which have a substantial relation to interstate commerce; that is, those activities which “substantially affect” interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). In Lopez, a case on which Wilson heavily relies, the Supreme Court invalidated 18 U.S.C. § 922(q), which was added to the Code by the Gun-Free School Zones Act of 1990. The statute made it a federal offense for any individual to “knowingly ... possess a firearm at a place that the individual knows, or has reasonable cause to" }, { "docid": "6752975", "title": "", "text": "and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted). Haney argues that § 922(o) exceeds Congress’s power under the Commerce Clause by regulating purely intrastate activity. We note at the outset that all of the courts of appeals that have addressed this issue have upheld § 922(o) as a valid enactment under the Commerce Clause. See United States v. Franklyn, 157 F.3d 90 (2d Cir.1998); United States v. Wright, 117 F.3d 1265 (11th Cir.1997), amended on other grounds, 133 F.3d 1412 (11th Cir.1998); United States v. Knutson, 113 F.3d 27 (5th Cir.1997) (per curiam); United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992); cf. Navegar, Inc. v. United States, 192 F.3d 1050, 1055 (D.C.Cir.1999) (upholding a federal ban on possessing semiautomatic assault weapons and comparing that law to § 922(o)), cert. denied, 531 U.S. 816, 121 S.Ct. 53,148 L.Ed.2d 21 (2000). Because § 922(o) contains no jurisdictional element (such as a requirement that the possession be in or affecting interstate commerce), we treat Haney’s challenge as a facial challenge. See United States v. Riddle, 249 F.3d 529, 539 (6th Cir.2001) (“Any as-applied challenge is irrelevant since [the statute] does not contain a jurisdictional element and the prosecution need not put on evidence of a particular connection with interstate commerce.”). As such, “[o]ur task is merely to determine whether Congress could have had a rational basis to support the exercise of its commerce power; and, further, that the regulatory means chosen were reasonably adapted to the end permitted" }, { "docid": "8678381", "title": "", "text": "possession of firearms \"in commerce or affecting commerce,” and thus did not reach the. constitutional issue. In contrast, the Court in Lopez concluded that because § 922(q) contained no ambiguity, it could not be read to contain a jurisdictional element. 514 U.S. at 561-63, 115 S.Ct. at 1631. We likewise find no ambiguity in section 922(d), and thus proceed to consider the constitutional question. . See United States v. Beuckelaere, 91 F.3d 781, 783-85 (6th Cir.1996) (upholding § 922(o) as a regulation of channels of and things in interstate commerce); United States v. Rambo, 74 F.3d 948, 952 (9th Cir.) (upholding § 922(o) as regulation of channels of interstate commerce), cert. denied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) (upholding § 922(o) as regulation of things in interstate commerce). . The same cannot he said for the prohibition at issue in Lopez. By prohibiting only the possession of guns within 1,000 feet of a school, Congress could not rationally have expected to substantially affect the manufacture, importation, and interstate transfer of firearms. .We note that every federal circuit to entertain a Commerce Clause challenge to § 922(o), either before or after Lopez, has upheld the constitutionality of this section. See United States v. Knutson, 113 F.3d 27 (5th Cir.1997); Rybar, 103 F.3d 273 (3d Cir.1996); Kenney, 91 F.3d 884 (7th Cir.1996); Beuckelaere, 91 F.3d 781 (6th Cir.1996); Rambo, 74 F.3d 948 (9th Cir.), cert. de nied, - U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993); United States v. Evans, 928 F.2d 858, 862 (9th Cir.1991); see also United States v. Kirk, 105 F.3d 997 (5th Cir.1997) (en banc) (affirming, by an equally divided court, district court order upholding § 922(o)). Although the Court in Lopez rejected the rationale previously used in Evans to sustain § 922(o), see 514 U.S. at 563-65, 115 S.Ct. at 1632, we place no weight" }, { "docid": "7312717", "title": "", "text": "at 16, raising the issue of whether the statutory language contemplates offenses like Ballinger’s. The first two questions are easily resolved, and we address them at the outset; the third is more involved, and is at the heart of this case. A. We review the constitutionality of a statute de novo. United States v. Scott, 263 F.3d 1270, 1271 (11th Cir.2001). To determine whether § 247 is a valid exercise of Congress’ commerce power, we begin with an overview of the nature of that power. Article I, § 8 of the United States Constitution provides that “The Congress shall have the Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. I, § 8, els. 1 & 3. The Supreme Court’s landmark decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), which issued shortly before Congress amended § 247 in 1996, synthesized more than a century of Commerce Clause activity into a definitive description of the commerce power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q) (1988 ed., Supp. V), which prohibited possession of a firearm within a thousand feet of a school. Because the statute criminalized intrastate conduct without including any jurisdictional hook to “ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce,” Lopez, 514 U.S. at 561, 115 S.Ct. 1624, the Court found that it exceeded the scope of Congress’ commerce power. In reaching this conclusion, Chief Justice Rehnquist, writing for the Court, laid out “three broad categories of activity that Congress may regulate under its commerce power”: “First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instru-mentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ie., those activities that substantially affect interstate" }, { "docid": "10118489", "title": "", "text": "be constitutional under either of the other two Lopez categories. As such, Knutson’s conviction for unlawfully possessing a maehinegun in violation of § 922(o) is AFFIRMED. . This issue was the subject of our rehearing en banc in United States v. Kirk, 70 F.3d 791, (5th Cir.1995), vacated, 78 F.3d 160, aff'd en banc by an equally divided court, 105 F.3d 997 (5th Cir.1997). . See United States v. Rybar, 103 F.3d 273 (3d Cir.1996) (upholding § 922(o) under the third of three possible categories of activity that Congress may regulate under the Commerce Clause, as a regulation of activities having a substantial effect on interstate commerce); United States v. Kenney, 91 F.3d 884 (7th Cir.1996) (upholding § 922(o) under the third category, as a regulation of activities having a substantial effect on interstate commerce); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996) (upholding § 922(o) under all three Lopez categories); United States v. Rambo, 74 F.3d 948 (9th Cir.) (upholding § 922(o) under the first category, as a regulation of channels of interstate commerce), cert. denied, -U.S. -, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995) (upholding § 922(o) under the second category, as a regulation of a thing in interstate commerce). . A \"machinegun” is defined in 26 U.S.C. § 5845(b) as \"any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” See 18 U.S.C. § 921(a)(23). . Congress passed § 922(o) as part of the Firearms Owners' Protection Act of 1986, Pub.L. No. 99-308, 100 Stat. 449 (1986), which amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28. Section 922(o) provides, in relevant part: (o)(l) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to- .4s 4s 4s 4: 4: 4s (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date" }, { "docid": "22972323", "title": "", "text": "Congress’ commerce clause power is derived from Article I, § 8 of the United States Constitution, which provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, els. 1 & 3. The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), synthesized and articulated the boundaries of this power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited possession of a firearm within a thousand feet of a school. In striking down the statute, the Court observed that there were “three broad categories of activity that Congress may regulate under its commerce power”: (1) “Congress may regulate the use of channels of interstate commerce”; (2) “Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ie., those activities that substantially affect interstate commerce.” Id. at 558-59, 115 S.Ct. 1624 (internal citations omitted). Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce. This Court further explained the proper boundaries of Congress’ ability to regulate the channels and instrumental-ities of interstate commerce in United States v. Ballinger, 395 F.3d 1218 (11th Cir.2005) (en banc). In Ballinger, we re viewed among others, the constitutionality of a federal statute that criminalized church-based arson where the “offense is in or affects interstate or foreign commerce.” Id. at 1224 (quoting 18 U.S.C. § 247(b)) (emphasis added). We upheld the statute against a commerce clause challenge, recognizing that “[pjlainly, congressional power to regulate the channels and instrumentalities of commerce includes the power to prohibit their use for harmful purposes, even if the targeted harm itself occurs" } ]

[ { "docid": "22657804", "title": "", "text": "part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984). Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972); and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not. .. th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43. The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific" } ]

[ { "docid": "441795", "title": "", "text": "the Commission’s order and hence not entitled to petition for judicial review under the Federal Power Act, 16 U.S.C. § 8251. A party is “aggrieved” under this statute if it satisfies both the constitutional and prudential requirements for standing. See Liquid, Carbonic Indus. Corp. v. FERC, 29 F.3d 697, 701-04 (D.C.Cir.1994); cf. Moreau v. FERC, 982 F.2d 556, 564 (D.C.Cir.1993) (interpreting similar language in Natural Gas Act). As the Supreme Court recently has restated, the three constitutional requirements are: (1) that the plaintiff have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of— the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third'party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, — U.S. -, -, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). The prudential requirement relevant here is that “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute” in question. Id. at -, 117 S.Ct. at 1167. LEPA counters that it is in fact a party “aggrieved” by the Commission’s order. It alleges that it will be injured by the increased price competition from CLECO that will flow from FERC’s unlawful lifting of regulatory controls. And in support of its contention that such pricing will be predatory, LEPA asserts a history of oligopolistic collusion in which CLECO participated, alleges a relatively recent example of predatory pricing by the oligopoly, and presents an expert’s opinion that the oligopoly will continue to exercise substantial market power. FERC did not contest in its brief, and at oral argument explicitly conceded, that as a competitor and customer LEPA comes with in the zone of interests of the Federal Power Act and hence" }, { "docid": "22112632", "title": "", "text": "the enactment of The Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (codified as amended at 42 U.S.C. § 1981)—to enable plaintiffs to recover compensatory and punitive damages and to demand a trial by jury. Thus, in an employment discrimination suit brought, as here, under Title VII and § 1981, a plaintiff can obtain, in addition to declaratory and injunctive relief under both statutes, back pay under Title VII and § 1981, and compensatory and punitive damages under § 1981. The maintenance of a Rule 23(b)(2) class action for all the relief these two statutes together afford is problematical. See Cooper v. Southern Co., 390 F.3d 695 (11th Cir.2004). .In particular, a plaintiff must claim facts consistent with the constitutional standing requirements. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997) (\"[The] irreducible constitutional minimum of standing requires: (1) that the plaintiffs have suffered an injury in fact — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”) (citing Lujan v. Defend ers of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)) (quotations omitted). . Rule 23(a) reads: One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the" }, { "docid": "1510687", "title": "", "text": "S.Ct. 1066, 43 L.Ed.2d 279 (1975); cf. Inner City Press v. Board of Governors of the Fed. Reserve, 130 F.3d 1088, 1089 (D.C.Cir.1997) (“We publish this opinion to emphasize that participation in administrative proceedings before the Board of Governors of the Federal Reserve System, like such participation before any agency, ... does not, without more, satisfy a petitioner’s Article III injury-in-fact requirement.”); United States v. Federal Maritime Comm’n, 694 F.2d 793, 800 n. 25 (D.C.Cir.1982) (“Although participation in the [administrative] proceeding below may be an inflexible prerequisite to be a ‘party aggrieved’ ... it does not follow that participation in and of itself provides a springboard for judicial review, for the party still must meet judicial standing requirements.”). To establish its Article III standing, a party must demonstrate the following: (1) that [it has] suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there [was] a causal connection between the injury and the conduct complained of — the injury [was] fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). “[W]hen the [party] is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Charitably construed, PIHA’s submissions suggest that two of its interests have been adversely affected by the amended New Cumberland project license: (1) PIHA’s “procedural right” to comment on certain documents submitted in support of the license amendment; (2) PIHA’s interest in development of the Pike Island project. With respect to PIHA’s asserted procedural right, however, the alleged infraction of 18 C.F.R. § 385.2010(e) is" }, { "docid": "20205305", "title": "", "text": "review a district court’s grant of a preliminary injunction for abuse of discretion. McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998). Legal determinations underlying the grant of an injunction are reviewed de novo, and factual determinations are reviewed for clear error. Cumulus Media, Inc. v. Clear Channel Commc’ns, Inc., 304 F.3d 1167, 1171-72 (11th Cir.2002). II. Discussion A. Standing Before considering the merits of the challenge to H.B. 87, we confront the threshold issue of whether Plaintiffs may properly challenge the law at all. First, we must address the State Officers’ contention that Plaintiffs lack standing to challenge the provisions at issue. The State Officers argue that Plaintiffs fail to satisfy the standing requirement of Article III, which limits federal jurisdiction to actual cases and controversies. To invoke our jurisdiction, a plaintiff must demonstrate that he has suffered an “injury in fact,” meaning “an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). In addition to a cognizable injury, “a causal connection” must exist that links the injury to the complained-of conduct, requiring in essence that the injury be “fairly traceable to the challenged action of the defendant” rather than “the result of the independent action of some third party not before the court.” Id. Finally, it must be “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. When, as here, plaintiffs file a preenforcement, constitutional challenge to a state statute, the injury requirement may be satisfied by establishing “ ‘a realistic danger of sustaining direct injury as a result of the statute’s operation or enforcement.’ ” Socialist Workers Party v. Leahy, 145 F.3d 1240, 1245 (11th Cir.1998) (quoting Am. Civil Liberties Union v. The Fla. Bar (ACLU), 999 F.2d 1486, 1492 (11th Cir.1993)). A plaintiff may meet this standard in any of three ways: “(1) [the plaintiff] was threatened with application of the statute; (2) application is likely; or (3) there is" }, { "docid": "23172428", "title": "", "text": "live controversy with respect to which the court can give meaningful relief.” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir.2000) (citations and internal quotation marks omitted). We consider questions of mootness under a plenary standard of review. United States v. Fla. Azalea Specialists, 19 F.3d 620, 621 (11th Cir.1994). The defendants contend that Larissa C.’s and Leanne G.’s claims are moot, and we agree. Because Larissa C. and Leanne G. have been adopted, they are no longer in the defendants’ legal or physical custody and therefore cannot be further harmed by the defendants’ alleged illegal practices. Because the plaintiffs’ amended complaint seeks only prospective injunctive relief against the defendants to prevent future harm, no live controversy exists between them and these two plaintiffs. Lar-issa C. and Leanne G. have no legally cognizable interest in the outcome of this lawsuit. All of their claims are moot. B. STANDING The three prerequisites for standing are that: (1) the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997). These three elements “eonsti-tute[] the core of Article Ill’s case-or-controversy requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 1017, 140 L.Ed.2d 210 (1998). The plaintiffs bear the burden of establishing each of the three standing elements. Bennett, 520 U.S. at 167-68, 117 S.Ct. at 1163-64. How much evidence is necessary to satisfy that burden depends on the stage of litigation at which the standing challenge is made." }, { "docid": "6207221", "title": "", "text": "are separate from those of Julie Biggs. We conclude, however, that Jerry and Holly Biggs’ claims are derivative of those of Julie Biggs. This result becomes apparent when one examines the requirements for standing in Article III courts. As we have recognized: The “irreducible constitutional minimum” for standing in an Article III court requires: “(1) that the plaintiff have suffered an ‘injury in fact’ [—] an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favdrable decision.” Presidio Golf Club v. National Park Service, 155 F.3d 1153, 1157 (9th Cir.1998) (quoting Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). Here, the only injury in fact that Jerry and Holly Biggs’ situation presents is the loss of Julie Biggs’ salary that she received while an associate at BBK. We agree with the Tenth Circuit that this type of injury is sufficiently substantial to permit Jerry and Holly Biggs to raise only the same claims asserted by Julie Biggs. See Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1278-79 (10th Cir.1998). In Horst-koetter, wives of Oklahoma Highway Patrol troopers, along with their husbands, challenged a regulation that prohibited troopers from displaying campaign signs at their residences. See id. at 1269. The wives had claimed, under the injury in fact prong of the standing analysis, that they had been injured under the First Amendment because they had to remove the political signs from their homes in order to save their husbands’ jobs. The court determined that the wives could “raise the same claims as their husbands, and do not have standing to raise any separate claims of their own.” Id. at 1279." }, { "docid": "17979684", "title": "", "text": "an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there [is] a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351, (1992)). Neither the Administrative Procedure Act, 5 U.S.C. § 701 et seq., nor any other congressional enactment can lower the Article III standing threshold. Lujan, 504 U.S. at 576, 112 S.Ct. 2130. Plaintiffs have the burden to establish jurisdiction by clearly alleging facts demonstrating that they are “a proper party to invoke judicial resolution of the dispute.” United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). Plaintiffs have met this burden. First, Plaintiffs sufficiently have alleged that they have suffered an injury-in-fact. Plaintiffs allege that the FWS’s refusal to vaccinate elk against brucellosis has reduced the efficacy of Wyoming’s own vaccination efforts among the resident elk population of Wyoming. Second, Plaintiffs have alleged a causal connection between their injury — a less effective vaccination program — and Defendants’ conduct — refusal to vaccinate or allow vaccination on the Elk Refuge. Finally, Plaintiffs have alleged that their injury would be redressed by a favorable outcome in this suit. Plaintiffs’ allegations, accepted as true, are sufficient to show that requiring the defendants to allow a state-run vaccination program on the Elk Refuge would reduce the transmission of brucellosis among the resident elk population and improve the efficacy of the state’s vaccination program. Because Plaintiffs have demonstrated constitutional standing, the Court now moves to the individual counts of Plaintiffs’ Complaint. The Court must determine" }, { "docid": "17979683", "title": "", "text": "Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The Court must convert a Rule 12(b)(1) motion to one under Rule 12(b)(6), or for summary judgment, “[i]f the jurisdictional question is intertwined with the merits of the case.” Bell v. United States, 127 F.3d 1226, 1228 (10th Cir.1997). I. Federal Defendants’ Motion to Dismiss Defendants argue that Plaintiffs’ cause of action should be dismissed for many reasons: (1) Plaintiffs do not have stand ing, (2) Defendants have not waived sovereign immunity, (3) Plaintiffs do not fall within the zone of interests of the statute under which they seek relief, (4) Plaintiffs fail to state a claim for which relief may be granted, and (5) Defendants’ actions were committed to agency discretion and are unreviewable. The Court will address these arguments in turn. A. Article III Standing For the Court to hear this case, the plaintiffs must have standing. To satisfy the standing requirement of Article III, the plaintiffs must demonstrate all the following factors: (1) that the plaintiff[s] have suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there [is] a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351, (1992)). Neither the Administrative Procedure Act, 5 U.S.C. § 701 et seq., nor any other congressional enactment can lower the Article III standing threshold. Lujan, 504 U.S. at 576, 112 S.Ct. 2130. Plaintiffs have the burden to establish jurisdiction by clearly alleging facts demonstrating that they are “a proper party to invoke" }, { "docid": "3158975", "title": "", "text": "Mandates Provision by requiring the State to expend funds in order to comply with the Secretary’s interpretation of the Act. Count I challenges the Secretary’s interpretation of three specific sections of the Act: (1) the requirement that special education assessments be conducted at grade level rather than instructional level, Compl. [doc. # 81] ¶¶ 117, 129,131; (2) the requirement that ELL students receive mathematics assessments in their first year in the country and reading assessments in the following year, id. ¶¶ 105,115, 131; and (3) the requirement that non-formative annual testing occur in every grade, id. ¶ 112. The State seeks a declaratory judgment that, in accordance with the Unfunded Mandate Provision, the State cannot be required to spend its own funds to comply with the Act, as interpreted by the Secretary. See id. ¶ 186. The Secretary raises a number of threshold objections to the Court’s consideration of the merits of the State’s claims in Count I. The Court will address each objection in turn. 1. Standing The Court must first consider the threshold question of justiciability and in particular, whether the State has standing to assert its claims in Count I. See Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (citing Warth, 422 U.S. at 498, 95 S.Ct. 2197). As the Supreme Court has explained: This ‘irreducible constitutional minimum’ of standing requires: (1) that the plaintiff have suffered an ‘injury in fact’ — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct." }, { "docid": "86849", "title": "", "text": "the Club had standing because it is located in the vicinity of the proposed new clubhouse, and determined that the Park Service’s conclusions in the EA and its “finding of no significant impact” were neither arbitrary nor capricious. DISCUSSION II. Presidio Golf Club’s Standing The Park Service contends that the Club lacks standing to sue under both NEPA and NHPA. The “irreducible constitutional minimum” for standing in an Article III court requires: (1) that the plaintiff have suffered an “injury in facf’an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of-the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, -, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997). In addition to the constitutional standing limitations, the courts have erected prudential barriers, “such as the general prohibition on a litigant’s raising another person’s legal rights, ... and the requirement that a plaintiffs complaint fall within the-zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The Park Service contends (A) that the Club lacks standing because any future injury to the club would be a purely economic competitive injury which is not within the zone of interests to be protected by NEPA or NHPA; (B) that the Club lacks standing in its representative capacity based on injury to its members; and (C) that any future injury would be “self-inflicted,” as well as “conjectural and speculative,” and therefore not fairly traceable to the actions of the defendant. A. Zone of interests The Park Service characterizes the Club’s claim as one solely for an alleged “competitive injury” to purely economic interests outside the zone of interests sought" }, { "docid": "7475075", "title": "", "text": "denial of their request for a refund. II The FCC advances a threshold objection to Ranger/Miller’s challenge to the four licenses, asserting that the appellants lack standing to raise such a claim. As the Supreme Court has explained, the “irreducible constitutional minimum” requirements of standing are: (1) that the plaintiff have suffered an “injury in fact” —- an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The question here is whether Ranger/Miller satisfy the third, “redressability” prong. We conclude that they do not. Ranger/Miller contend that their injury would be redressed by vacating the award of the four challenged licenses because, if the licenses were withdrawn, Ranger/Miller would have a reasonable chance of obtaining them. The appellants concede that, if the awards were vacated, the Balanced Budget Act would require the FCC to reassign the licenses via auction. Reply Br. at 6. But they contend that such an auction would have to be “closed” — that is, limited to bidders “from the original pool” that applied for the lotteries in 1988 and 1989. Id. at 5-6. And because the remaining members of that original pool are a small number of small companies like Ranger/Miller, the appellants believe they would have a reasonable chance of submitting winning bids. Id. at 5. The flaw in this argument is that the consequence of a Ranger/Miller victory on this appeal would not be an auction limited to the original applicants, but rather an open" }, { "docid": "7930675", "title": "", "text": "U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “Standing ‘subsumes a blend of constitutional requirements and prudential considerations.’ ” Id. (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). “Obviously, satisfying the Article III ‘case or controversy’ requirement is the ‘irreducible constitutional minimum’ of standing.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Article III constitutional standing contains three elements: (1) the Plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant and not the result of independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 484-85 (citing Lujan, at 560-61, 112 S.Ct. 2130). “In addition to the ‘immutable requirements of Article III,’ the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Id. at 485 (quoting Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997)). These principles are: (1) the Plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties; (2) even when the Plaintiff has alleged redressable injury sufficient to meet the requirements of Article III, the federal courts will not adjudicate abstract questions of wide public significance which amount to generalized grievances shared and most appropriately addressed in the representative branches; and (3) the Plaintiffs complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. Id. (quoting Valley Forge Christian College, 454 U.S." }, { "docid": "9444009", "title": "", "text": "Ltd., 74 F.3d 972, 976 (9th Cir.1996); Paulman v. Gateway Venture Partners III, L.P. (In re Filtercorp, Inc.), 163 F.3d 570, 584 (9th Cir.1998). The court’s denial of a motion for reconsideration is reviewed for an abuse of discretion. See Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001). “A court abuses its discretion when it bases its decision on an erroneous conclusion of law or when the record contains no evidence on which it could rationally base its decision.” United States v. Prairie Pharmacy, Inc., 921 F.2d 211, 212 (9th Cir.1990) (citation omitted). DISCUSSION A. Property Owners Have Standing to Appear in and Initiate Rule 60(b) Motions which Affect their Interests The bankruptcy court found that both the Kempfs and Mozsgai, respectively, were pecuniarily affected by the Rule 60(b) hearings in bankruptcy court and thus had standing to appear therein. Hasso disagrees, maintaining that they were not parties to the Sale Orders, and that Moz-sgai cannot assert the Kempfs’ due process rights. The doctrine of standing encompasses both constitutional limitations on federal court jurisdiction, i.e., the “case” or “controversy” requirement of Article III, and prudential limitations on a court’s exercise of that jurisdiction. The party asserting standing bears the burden of proving it. Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Constitutional standing requires: (1) that the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 167, 117 S.Ct. 1154. Prudential standing requires that a plaintiffs grievance must fall within the “zone of interest” protected by the statute or constitutional right" }, { "docid": "12211232", "title": "", "text": "Article III demand that petitioners demonstrate injury flowing from the challenged orders. The Court’s most recent pronouncement on this “ ‘irreducible constitutional minimum’ ” of standing requires a showing: (1) that the plaintiff[s] have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of— the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, — U.S. -, -, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)). The petitioners in the instant case fall into three overlapping categories: (1) individual residents of the South Bronx; (2) customers of Chemical (and now, presumably, Chase); and (3) various community organizations. They allege several different injuries in support of their standing in this case. First, they contend that their “extensive participation” below confers the right to challenge the outcomes of the various proceedings. Next, petitioners allege that some unidentified members of ICP “have ... been denied credit from the banks in their community” and “are likely to seek credit from banks in their community” in the future. Because the Board and OTS ignored the banks’ allegedly poor CRA performance, the argument goes, these individuals will be less likely to obtain desired financial services. ICP and Lee also contend that, as customers of Chemical, they stand to suffer from the anti-competitive effects of the merger of Chase and Chemical. We reject petitioners’ contention that their participation in the administrative process confers standing in this case. While the Supreme Court has recognized that “ ‘procedural rights’ are special,” Defenders of Wildlife, supra, 504 U.S. at 572 n. 7, 112 S.Ct. at 2142-43 n. 7," }, { "docid": "21089004", "title": "", "text": "the suit is initiated. ANALYSIS Section 437g(8)(a) of the FECA, which provides for judicial review of the agency’s dismissal of an administrative complaint, does not automatically confer standing. Rather, it “confers a right to sue on parties who otherwise already have standing.” Common Cause v. FEC, 108 F.3d 413, 419 (D.C.Cir.1997). The question of standing involves both constitutional limitations on federal court jurisdiction as well as prudential limitations on its exercise. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Standing is based upon the facts as they exist at the time the complaint is filed, and plaintiff bears the burden of proof. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To meet the constitutional requirement of standing a plaintiff must show: (1) he has suffered an injury which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there is a causal connection between the alleged injury and conduct that is fairly traceable to the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560, 112 S.Ct. 2130. Here, the FEC challenges plaintiffs’ constitutional standing on the grounds that (1) the injuries alleged by plaintiffs do not meet the injury in fact requirement of Article III; (2) plaintiffs’ injuries are not fairly traceable to the FEC, but instead are the result of independent actions by third parties, specifically the CPD; and, for the same reason (3) plaintiffs’ injuries cannot be effectively redressed by relief directed at the FEC. I. Injury in Fact Plaintiffs’ standing to bring suit must be based on “an injury stemming from the FEC’s dismissal of [their] administrative complaint.” Judicial Watch, 180 F.3d at 277; see also 2 U.S.C. § 437g(a)(8)(A). Defendant argues that plaintiffs have not established a “concrete and particularized” injury sufficient to meet the requirements of Article III standing because the 1996 debates from which Hagelin and Tompkins were excluded and the 1996 election were “long over” when the FEC denied plaintiffs’" }, { "docid": "9444010", "title": "", "text": "federal court jurisdiction, i.e., the “case” or “controversy” requirement of Article III, and prudential limitations on a court’s exercise of that jurisdiction. The party asserting standing bears the burden of proving it. Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Constitutional standing requires: (1) that the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 167, 117 S.Ct. 1154. Prudential standing requires that a plaintiffs grievance must fall within the “zone of interest” protected by the statute or constitutional right invoked and that a litigant must assert his or her own rights or interests and not those of a third party. Bennett, 520 U.S. at 162, 117 S.Ct. 1154; see also Chiu, 266 B.R. at 748-50 (listing limitations on standing). Rule 60(b) states, in relevant part: On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void. “Rule 60(b) does not grant anyone standing to bring an independent action; it merely does not restrict any standing a party otherwise has.” Herring v. F.D.I.C., 82 F.3d 282, 285 (9th Cir.1995) (emphasis in original). The general rule (with the possible exception of claims of fraud on the court) “is that one must either be a party or a party’s legal representative in order to have standing to bring any Rule 60(b) motion.” Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1520 (11th Cir.1987). 1. The Kempfs were Interested Parties in Hasso’s" }, { "docid": "23172429", "title": "", "text": "— an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997). These three elements “eonsti-tute[] the core of Article Ill’s case-or-controversy requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 1017, 140 L.Ed.2d 210 (1998). The plaintiffs bear the burden of establishing each of the three standing elements. Bennett, 520 U.S. at 167-68, 117 S.Ct. at 1163-64. How much evidence is necessary to satisfy that burden depends on the stage of litigation at which the standing challenge is made. Id. At the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992) (citations and internal marks omitted). Because Larissa C.’s and Leanne G.’s claims are moot, we have nine remaining plaintiffs who appealed to this Court and for whom the standing question matters: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Tammy G., Elaine R., Rachel C., and John J. Taking the allegations of the complaint as true for present purposes, as we must, Pompey v. Broward County, 95 F.3d 1543, 1548 n. 6 (11th Cir.1996), we will proceed count-by-count as to all the injury claimed by the plaintiffs who have appealed to this Court. In Count I, the plaintiffs claim that the defendants have violated their substantive due process rights by engaging in a pattern and practice of" }, { "docid": "12211231", "title": "", "text": "and controversies. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The Supreme Court has recognized that a litigant’s stake in the controversy must extend beyond mere interest in a dispute, and the doctrine of standing has developed to ensure the presence of “that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The standing doctrine is rooted firmly in Article III, but it also implicates so-called prudential limitations on a court’s authority to hear a case. “In both dimensions it is founded in concern about the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). As with questions of jurisdiction generally, the party invoking the authority of the court bears the burden of proof on the issue of standing. Id. at 501-02, 95 S.Ct. at 2206-07. The constitutional limitations of Article III demand that petitioners demonstrate injury flowing from the challenged orders. The Court’s most recent pronouncement on this “ ‘irreducible constitutional minimum’ ” of standing requires a showing: (1) that the plaintiff[s] have suffered an “injury in fact”—an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of— the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, — U.S. -, -, 117 S.Ct. 1154, 1163, 137 L.Ed.2d 281 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992)). The petitioners in the instant case fall into three overlapping categories: (1) individual residents of the South" }, { "docid": "22848098", "title": "", "text": "question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Standing “subsumes a blend of constitutional requirements and prudential considerations.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Obviously, satisfying the Article III “ease or controversy” requirement is the “irreducible constitutional minimum” of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Article III constitutional standing contains three elements: (1) the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. at 2136-37 (citations, internal quotations, brackets and ellipses omitted). In addition to the “ ‘immutable requirements of Article III,’ the federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.” Bennett v. Spear, 520 U.S. 154,-, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997) (citation omitted). They are: (1) “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties,” Valley Forge Christian College, 454 U.S. at 474, 102 S.Ct. at 760 (citation omitted); (2) “even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Article III, the federal courts will not adjudicate abstract questions of wide public significance which amount to generalized grievances pervasively shared and" }, { "docid": "3158976", "title": "", "text": "question of justiciability and in particular, whether the State has standing to assert its claims in Count I. See Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir.2006) (citing Warth, 422 U.S. at 498, 95 S.Ct. 2197). As the Supreme Court has explained: This ‘irreducible constitutional minimum’ of standing requires: (1) that the plaintiff have suffered an ‘injury in fact’ — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (citing Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130). For purposes of determining standing, the Court “must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth, 422 U.S. at 501, 95 S.Ct. 2197. According to the Secretary, the State lacks standing for two reasons. First, the State is currently in compliance with the Act and has suffered no injury in fact because no federal funds have been withheld from the State. See Mem. in Supp. of Def.’s Mot. to Dismiss [doc. # 18] at 27. The State concedes that it is currently in compliance with the Act and that there is no immediate risk of funds being withdrawn. See Compl. [doc. # 81] ¶ 9. Second, in a related vein, the Secretary argues that all of the State’s alleged injuries are self-inflicted and therefore do not qualify as an injury in fact because the State can comply with the annual testing requirements, as construed by the Secretary, without expending more than the federal funds received by the State under the Act." } ]

[ { "docid": "12713032", "title": "", "text": "the court as it was announced at the time was based on the theory that the offer was “in the nature of an estoppel”. If this was not the theory upon which it was offered it was incumbent upon counsel at the time to bring the matter sharply to the attention of the court. But instead counsel in effect said: “Yes, it is offered as an estoppel and as an admission against interest.” We have held that even the declaration was not a judicial admission and, hence, not an estoppel. Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892. The mere offer of proof that the Government had deposited this money “for the use of this property owner” without any reference to the declaration accompanying the deposit was meaningless and would simply have been confusing to the jury. The offer was clearly not sufficient to raise the question which defendants now argue. If admissible this testimony would have been an admission that the property taken had a value of $35,125.00. The jury, however, returned a verdict awarding the ■defendants the sum of $37,900.00 as just ■compensation for the property taken, a value in excess of the amount stated in the alleged admission. If, therefore, it should be conceded, which it is not, that the proffered testimony was admissible its exclusion could scarcely be said to have been prejudicial. It certainly did not tend to prove that the property was worth more ■than $35,125.00. The erroneous exclusion of evidence is not a reversible error unless it is prejudicial to the substantial rights of the party offering it. We cannot see that the admission of this evidence would have benefited defendants. As has been noted defendants’ witnesses placed the value of this property at figures ranging from $60,000.00 to $75,000.00. This proffered admission would be evidence of a value much less than that fixed by defendants’ witnesses and substantially less than that determined by the jury. Rejection of the evidence was, therefore, not in any event prejudicial. It is next contended that the verdict returned was grossly inadequate and" } ]

[ { "docid": "11033605", "title": "", "text": "the verdict is inadequate and to reverse the judgment for that reason. Herencia v. Guzman, 219 U.S. 44, 31 S.Ct 135, 55 L.Ed. 81; Ramming Real Estate Co. v.. United States, 8 Cir., 122 F.2d 892, 895;, O’Donnell v. United States, 8 Cir., 131 F.2d 882, 884. The admission in evidence of the 1933 deed is objected to for the reason that it disclosed that the consideration paid for the land in 1933 was only $4,000, which appellants say is irrelevant to the issue of market value because too remote in time. The objection fails for two reasons. First, the admissibility of the deed evidencing a purchase of the property 7 years before the date of taking was a matter within the discretion of the trial judge, United States v. Becktold Co., 8 Cir., 129 F.2d 473, 479; and, second, assuming that its admission was a technical error, the error was without prejudice because the contents of the deed including the consideration shown had been admitted in evidence without objection. Western Coal & Mining Co. v. Greeson, 8 Cir., 284 F. 510, 512; Puget Sound Power & Light Co. v. City of Puyallup, 9 Cir., 51 F.2d 688, 696. The important question on this appeal is ■whether the court erred in excluding the ■opinion testimony of two of appellants’ witnesses on value. The land' condemned and taken by the government comprises 199.6 acres situated on the north side of the Missouri river in St. Charles county, Missouri. From 40 to 50 per cent, of the land had been cleared .and cultivated. The remainder of the tract was hilly and rolling land covered with .timber. In 1940, at the time of the taking there existed on the premises an eleven-room log and frame dwelling house, some ■old outbuildings, fences, and an orchard. The buildings and the fences were all removed by the government. There was evidence, also, that the tract had value for estate purposes because of its accessibility to St. Louis and St. Louis county, Missouri. In September, 1937, the Daniel Boone Bridge had been constructed across the Missouri river," }, { "docid": "11033603", "title": "", "text": "THOMAS, Circuit Judge. Upon exceptions by both the United States and the landowners to the commissioners’ report in a condemnation proceeding the disputed question of the value of the land taken was tried to a jury and the landowners appeal from the judgment entered upon the verdict. The appellants seek reversal on three grounds, namely, (1) That the verdict was grossly inadequate; (2) that the court erred in admitting in evidence a deed dated December 13, 1933, conveying the land to appellants’ grantor; and (3) that the court erred in excluding the opinion testimony of two witnesses. Under the Fifth Amendment a property owner is entitled to receive just compensation for property appropriated by the sovereign. Olson v. United States. 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236; Monongahela Nav. Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463; Redman v. United States, 4 Cir., 136 F.2d 203, 205. Just compensation is the market value of the property at the time of taking. United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. It may be more or less than the investment. Olson v. United States, supra; United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 285, 63 S.Ct. 1047, 87 L.Ed. 1390. Upon the trial the appellants assumed the burden of proof and offered evidence showing that the owner paid $15,750 for the premises in 1938, and that at the time of taking in 1940 the value of the land was. $15,000. Four government witnesses testified to values of $6,500, $7,000, $8,000, and $9,000 respectively. The verdict was for $9,000. Clearly the verdict was within the scope of the testimony. It can not be-said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial.. It is the law in the federal courts that verdicts based upon substantial evidence are-conclusive of the facts on appeal. Under these circumstances we know of no rule-which would authorize this court to hold, that" }, { "docid": "17511104", "title": "", "text": "JOHN E. MILLER, District Judge. The tract in question consists of 40 acres of land in Marion County, Arkansas. It was taken by the Government on December 8, 1947, for use in connection with the Bull Shoals Dam and Reservoir Project. The Government obtained from this tract a large proportion of the stone that was used in making the concrete that went into the Bull Shoals Dam. A controversy arose between the Government and the defendant landowner as to just compensation for the tract, which controversy was tried to a jury on September 24 through September 27, 1951. The defendant’s testimony as to just compensation ranged from $400,000.00 to $600,000.00, whereas the Government’s- testimony was $800.00. This difference is accounted for by the fact that the defendant’s witnesses valued the tract on the basis of the limestone deposits thereon, while the Government’s witness did not consider the presence of such deposits as enhancing its market value. The jury returned a verdict for $60,000.00, and subsequently the Government filed a motion for a new trial. This motion is now before the court for determination. The court has broad powers in the disposition of a motion for a new trial. Thus, while due respect should be accorded the findings of the jury, the court should set aside the verdict and grant a new trial in any case where, from a consideration of all the facts and circumstances pertaining to the trial, the court is convinced that the ends of justice so require. This may be done even though there is substantial evidence to support the jury’s findings, which, of course, would preclude the granting of a directed verdict. As expressed by Judge Parker in Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, 352: “On such a motion [motion for a new trial] it is the duty of the judge to set aside the verdict and grant a new trial, if he is of opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a" }, { "docid": "478511", "title": "", "text": "at from $41,050 to $51,000. The jury determined the value at $31,365. As to the Buescher farm, government witnesses fixed the value from $13,500 to $19,100, while witnesses for the defendant fixed its value at from $33,625 to $39,025, and the jury determined the value at $21,250. The value so determined by the jury was within the scope of the testimony, and hence, it is sustained by substantial evidence. We do not pass upon the weight of the evidence, and the trial court has denied defendant’s motion for a new trial. In these circumstances, the verdicts, being supported by substantial evidence, even though there may be a conflict in the evidence, must be sustained. Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892; Love v. United States, supra [8 Cir., 141 F.2d 981]; O’Donnell v. United States, 8 Cir., 131 F.2d 882.” (Emphasis supplied.) Similarly, it was said in Love v. United States, 8 Cir., 1944,141 F.2d 981, 982: “Clearly the verdict was within the scope of the testimony. It can not be said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial. It is the law in the federal courts that verdicts based upon substantial evidence are conclusive of the facts on appeal. Under these circumstances we know of no rule which would authorize this court to hold that the verdict is inadequate and to reverse the judgment for that reason. Herencia v. Guzman, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892, 895; O’Donnell v. United States, 8 Cir., 131 F.2d 882, 884.” In applying the rule of the above cases to the facts in the instant controversies, we point out that the valuation testimony may be summarized from the record as follows: Clarence Evans, A. H. Easter-brook and John L. Andersen testified in behalf of the owners. They testified as to the difference in the market value of the entire property involving Tract No." }, { "docid": "7031330", "title": "", "text": "(D. Ct. Order at 20.) Therefore, the district court granted Campos’s motion for a new trial. The government now appeals. II. Rule 33 states that “the court may grant a new trial to [a] defendant if the interests of justice so require.” The decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court. While the district court’s discretion is quite broad — “it can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict,” White v. Pence, 961 F.2d 776, 780 (8th Cir.1992) (quoted source and internal marks omitted) — there are limits to it. Unless the district court ultimately determines that a miscarriage of justice will occur, the jury’s verdict must be allowed to stand. See United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000). Motions for new trials based on the weight of the evidence are generally disfavored. That being said, the district court has broader discretion to grant a new trial under Rule 33 than to grant a motion for acquittal under Rule 29, but it nonetheless must exercise the Rule 33 authority “sparingly and with caution.” See United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980); see also 3 Charles Alan Wright, Federal Practice and Procedure § 553, at 248 (2d ed.1982) (granting new trial under Rule 33 is unusual remedy that is reserved for “exceptional cases in which the evidence preponderates heavily against the verdict”). The district court properly cited these standards in its Rule 33 analysis, but we conclude, abused its discretion by setting aside the jury’s verdict after finding a lack of circumstantial evidence to support the distribution charge. See Dominium Mgmt. Servs., Inc. v. Nationwide Hous. Group, 195 F.3d 358, 366 (8th Cir.1999) (standard of review). The government argues that the district court abused its discretion by granting a new trial when the quantity of methamphetamine seized and its location adjacent to the firearm, ammunition, and false identification documents established that Campos intended" }, { "docid": "11150853", "title": "", "text": "Ellis would not have detracted from the probative value of Harrison’s testimony and that of other witnesses for the prosecution. It is the function of the jury to pass on the powers of observation of a witness and his credibility. Thompson v. United States, 1951, 88 U.S.App.D.C. 235, 236, 188 F.2d 652, 653. In Glasser v. United States, 1952, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, the Supreme Court said: “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. * * * ” The appellant’s reliance upon Mesarosh v. United States, 1956, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, is misplaced. There the Solicitor General’s representations to the court were tantamount to a repudiation of the credibility of a key witness who had been “wholly discredited.” Id., 352 U.S. at page 9, 77 S.Ct. at page 5. Here the conviction did not rest upon clearly false testimony, nor did it depend upon what Ellis said. Indeed, had he not been called, other substantial evidence was ample to sustain the verdict. We are persuaded that a mere recital of the evidence distinguishes the instant case from the situation presented in Mesarosh. We think Mitchell was fairly tried and convicted on ample evidence. We are further of the view that Captain Brown’s testimony would not produce an acquittal at a new trial. Either on the motion or the merits, the judgment of conviction must be upheld. Affirmed. . These points were repeated and elaborated in later motions, as will appear. . “Motion for Dismissal of Sentence and Reversal of Verdict in Criminal Case #703-59 pertinent to Inmate #122833, Harold Robert Mitchell, a resident of the District of Columbia; tried on September 3-8 1959 in the United States District Court, District Judge Luther W Youngdahl presiding. “The defendent [sie] respectfully submits the following evidences to show cause and reason to substantiate his claims that the District" }, { "docid": "9912255", "title": "", "text": "judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered.” Borras asks us to set aside the ruling as to a new trial, claiming that the district court’s conclusion that the jury’s verdict is contrary to the great weight of the evidence was based upon the district court’s disregard or misunderstanding of the testimony, particularly that of Dr. Vigoreaux. While, for purposes of the judgment n.o.v. ruling, the court erred in ascribing no weight to Dr. Vigoreaux’s testimony, which it regarded as “speculative,” the court accurately summarized Dr. Vigoreaux’s testimony and quoted material portions thereof, indicating that it considered the testimony and fully understood its purport. Thus we cannot agree that the district court disregarded or misunderstood the testimony. The question nonetheless remains whether the court abused its discretion in holding that a new trial was in order. Even though there may be substantial evidence that would prevent the direction of a verdict or a judgment n. o. v., it is, “the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice . . .” Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir. 1941). There are a number of reasons that may justify the granting of a new trial: “For instance, the district judge, who saw and heard the witnesses, might be of the view that the defendant’s evidence was the more credible, and that the verdict for the plaintiff was against the weight of the evidence. Or he might conclude, from the size of the verdict, that the jury probably did not weigh the issues of liability impartially. In such instances he might come to the determination that in the interest of justice the verdict should be set aside and the issues submitted to another jury.” Stevens v. G. L. Rugo & Sons, 209 F.2d 135, 141 (1st Cir. 1953)" }, { "docid": "478512", "title": "", "text": "be said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial. It is the law in the federal courts that verdicts based upon substantial evidence are conclusive of the facts on appeal. Under these circumstances we know of no rule which would authorize this court to hold that the verdict is inadequate and to reverse the judgment for that reason. Herencia v. Guzman, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892, 895; O’Donnell v. United States, 8 Cir., 131 F.2d 882, 884.” In applying the rule of the above cases to the facts in the instant controversies, we point out that the valuation testimony may be summarized from the record as follows: Clarence Evans, A. H. Easter-brook and John L. Andersen testified in behalf of the owners. They testified as to the difference in the market value of the entire property involving Tract No. 13 before and after the taking which included severance damages to the remaining ownership. Their estimates of the difference were $17,600, $14,400 and $16,-000 respectively. The government’s valuation witnesses were Floyd Bossen, who testified to a difference in value of $5,-840.15, and Robert C. Walters, who believed the damages to be $5,660. The jury verdict was for $7,000, well within the range of the testimony. As to Tract No. 17, the landowner’s witnesses Parker and Andersen testified to damages of $9,650 and $8,500 respectively, while Bossen and Walters believed the difference in value to be $3,-550.10 and $3,390 respectively. Thus the jury’s award of $5,200 as to Tract 17 was also clearly within the scope of the evidence. The two awards, accordingly, may not be disturbed by this court as being allegedly inadequate. Solomon Dehydrating Co. v. Guyton, 8 Cir., 1961, 294 F.2d 439; Myra Foundation v. United States, 8 Cir., 1959, 267 F.2d 612; Foster v. United States, supra; and Love v. United States, supra. As was said in Stephens v. United States, 5" }, { "docid": "11138087", "title": "", "text": "the jury as affecting the weight of the testimony, rather than going to its admissibility. We think there was no abuse of discretion in admitting this testimony which the witness said he had taken into consideration in arriving at the fair market value of the property in controversy. It is finally urged that the verdict was grossly inadequate and was opposed to the weight of the evidence. Four expert witnesses called by the Government valued the property respectively at $8,250, $7,500, $9,000, and $8,500. Three witnesses called by the defendant fixed the value of the property respectively at $30,000, $27,-750, and $28,750. The verdict of the jury was for $15,000. It can not, therefore, be said that the verdict was not based upon substantial evidence. In the national courts, verdicts are conclusive of the facts and can not be set aside on appeal as being against the weight of the evidence. The remedy in such a case is by motion for a new trial in the trial court. Kroger Grocery & Baking Co. v. Yount, 8 Cir., 66 F.2d 700, 92 A.L.R. 1166; Herencia v. Guzman, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; Canal Const. Co. v. Henson, 8 Cir., 280 F. 98. Being of the view that the record discloses no prejudicial error, the judgment appealed from is affirmed." }, { "docid": "1920166", "title": "", "text": "F.Supp. 942 (M.D.Fla. 1980). I. The Order Granting A Judgment Notwithstanding the Verdict A motion for a judgment n. o. v. or directed verdict tests the sufficiency of the evidence to support a jury verdict. Boeing Co. v. Shipman, 411 F.2d 365, 373-74 (5th Cir. 1969) (en banc). Since the sufficiency of the evidence to support a verdict is a question of law, the standard of review on appeal is the same as that applied by the trial court in making its initial ruling. Williams v. United Insurance Co. of America, 634 F.2d 813, 815 (5th Cir. 1981); United States v. Bucon Construction Co., 430 F.2d 420, 423 (5th Cir. 1970). Boeing Co. v. Shipman sets forth the criteria for evaluating such motions. [T]he Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — -but in the light and with all reasonable inferences most favorable to the party opposed to the motion.... [I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. . . . There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses. 411 F.2d at 374-75 (footnote omitted) (emphasis added). The Actual Cash Value — Interrogatory 4 In granting a judgment n. o. v. as to questions 1, 3, and 4, the trial judge recognized that the actual cash value of the insured property was material to determining the amount of recovery and whether, because of concealments or misrepresentations regarding the actual value, the plaintiff should be denied recovery. Tackling that issue first, the trial judge ruled that testimony given by Jackson as to the value of" }, { "docid": "4163965", "title": "", "text": "because it is against the weight of the evidence. Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Herencia v. Guzman, 1910, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; cf. Vallo v. United States Express Co., 1892, 147 Pa. 404, 23 A. 594, 14 L.R.A. 743, 30 Am.St.Rep. 741. Moreover, when a trial court denies a motion for a new trial, as was done in the instant case, an appellate court will not itself reweigh the evidence if there is substantial evidence to support the verdict. A verdict based on conflicting evidence which is approved by the trial court is therefore conclusive on appeal. See Philadelphia & R. Ry. Co. v. McKibbin, 3 Cir., 1910, 259 F. 476; Oliver v. Bell, 3 Cir., 1939, 103 F.2d 760. For the reasons assigned, we are of the opinion that the trial court properly allowed the verdict of the jury to stand, and the action of the court in denying plaintiff’s motion for a new trial, furnishes no ground for a reversal. 2. Did the jury render an arbitrary verdict inconsistent with the evidence of market value? As has already been stated, the jury reached the conclusion that plaintiff was not entitled to severance damages so that the $12,000 award represents damages only for the value of the land actually taken. Plaintiff now contends that this verdict is arbitrary and finds no support in the evidence. Witnesses for the United States, however, testified that the value of the land condemned was approximately $7,000 or $8,000. Moreover, even one of plaintiff’s witnesses admitted that the market value of the tract taken by itself did not exceed $14,000. Accordingly, there is no great or unreasonable discrepancy In the evidence on this point and the verdict is in line with the respective evaluations of witnesses for both parties as well as the $12,500 award granted by the Board of Viewers. The jury having determined that the condemnation did not interfere with the development of the remaining property, it then considered the evidence of value offered" }, { "docid": "478513", "title": "", "text": "13 before and after the taking which included severance damages to the remaining ownership. Their estimates of the difference were $17,600, $14,400 and $16,-000 respectively. The government’s valuation witnesses were Floyd Bossen, who testified to a difference in value of $5,-840.15, and Robert C. Walters, who believed the damages to be $5,660. The jury verdict was for $7,000, well within the range of the testimony. As to Tract No. 17, the landowner’s witnesses Parker and Andersen testified to damages of $9,650 and $8,500 respectively, while Bossen and Walters believed the difference in value to be $3,-550.10 and $3,390 respectively. Thus the jury’s award of $5,200 as to Tract 17 was also clearly within the scope of the evidence. The two awards, accordingly, may not be disturbed by this court as being allegedly inadequate. Solomon Dehydrating Co. v. Guyton, 8 Cir., 1961, 294 F.2d 439; Myra Foundation v. United States, 8 Cir., 1959, 267 F.2d 612; Foster v. United States, supra; and Love v. United States, supra. As was said in Stephens v. United States, 5 Cir., 1957, 235 F.2d 467, 471: “ * * * Since the award is within the range of the credited testimony, and the commission was not bound to accept the valuation of any particular witness, we may not reweigh the evidence in a de novo review or reverse merely because the commission found a valuation more closely based upon the testimony of the Government appraisers than upon that of the landowners’ witnesses.” Appellants make much of the fact that the jury’s awards were below the government’s estimate of just compensation for the taking as represented: by the government’s deposit in the registry of the court of its estimates which were subject to withdrawal prior to trial' at the option of the owners. The deposit of estimated compensation by the government is “no evidence of value” and has “no bearing whatsoever on value.”' Chapman v. United States, 10 Cir., 1948, 169 F.2d 641, 644. See, also, In re Unit ed States, 5 Cir., 1958, 257 F.2d 844, 849, certiorari denied, Certain Interests in Property, etc. v." }, { "docid": "11033604", "title": "", "text": "374, 63 S.Ct. 276, 87 L.Ed. 336, 147 A.L.R. 55. It may be more or less than the investment. Olson v. United States, supra; United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 285, 63 S.Ct. 1047, 87 L.Ed. 1390. Upon the trial the appellants assumed the burden of proof and offered evidence showing that the owner paid $15,750 for the premises in 1938, and that at the time of taking in 1940 the value of the land was. $15,000. Four government witnesses testified to values of $6,500, $7,000, $8,000, and $9,000 respectively. The verdict was for $9,000. Clearly the verdict was within the scope of the testimony. It can not be-said, therefore, that it is not supported by substantial evidence. The record also discloses that the judge who heard all the testimony refused to grant a new trial.. It is the law in the federal courts that verdicts based upon substantial evidence are-conclusive of the facts on appeal. Under these circumstances we know of no rule-which would authorize this court to hold, that the verdict is inadequate and to reverse the judgment for that reason. Herencia v. Guzman, 219 U.S. 44, 31 S.Ct 135, 55 L.Ed. 81; Ramming Real Estate Co. v.. United States, 8 Cir., 122 F.2d 892, 895;, O’Donnell v. United States, 8 Cir., 131 F.2d 882, 884. The admission in evidence of the 1933 deed is objected to for the reason that it disclosed that the consideration paid for the land in 1933 was only $4,000, which appellants say is irrelevant to the issue of market value because too remote in time. The objection fails for two reasons. First, the admissibility of the deed evidencing a purchase of the property 7 years before the date of taking was a matter within the discretion of the trial judge, United States v. Becktold Co., 8 Cir., 129 F.2d 473, 479; and, second, assuming that its admission was a technical error, the error was without prejudice because the contents of the deed including the consideration shown had been admitted in evidence without objection. Western Coal & Mining Co." }, { "docid": "13823006", "title": "", "text": "the lease was temporary and was to end certainly not later than six months after the emergency. The refusal of the court to permit owner to introduce evidence touching the original cost of the building on a cubic foot basis, and also the estimated cost of the reproduction of the Poydras Building was not prejudicial error. Manifestly, such evidence was remote in point of time as to original cost. United States v. Becktold Co., 8 Cir., 129 F.2d 473, 479; Devou v. City of Cincinnati, 6 Cir., 162 F. 633. It could not be helpful to the jury to permit evidence of the reproduction of the building by owner’s witness, the Assistant City Architect. The building had stood for over forty-six years and the cost of reproduction in the year 1943 would, in all probability, mislead the jury. It was within the sound discretion of the court to admit or reject this evidence and its ruling should not work a reversal. Union Electric Light & Power Co. v. Snyder Estate Co., 8 Cir., 65 F.2d 297, 304; Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892; Cf. United States v. Savannah Shipyards, 5 Cir., 139 F.2d 953. It was not error to exclude testimony as to rent paid by owner of the building at the time of trial for an office in which it was keeping records formerly stored in the attic of the Poydras Building. The question propounded was, “How much do you pay for that (office where owner had moved) now?” This question called for an answer as to the time of the trial and not as to the time of taking, and for that reason was irrelevant. Furthermore, the testimony was properly excluded for the reason that it did not concern property comparable to that taken. Loughran v. United States, 62 App.D.C. 57, 64 F.2d 555; Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892. The award to which owner is entitled is the fair market value of the property taken, as of the time of taking. United States v. Miller," }, { "docid": "18432660", "title": "", "text": "9 Cir., 8 F.2d 211. Here the acquittal on the first two counts indicates without doubt that the questioned testimony of Clark, if it had any testimonial value, was repudiated by the jury. If any possible prejudice to appellant was reflected in Clark’s testimony, it must have backfired against the prosecution. In the circumstances revealed by the record we must conclude that the Clark incident does not require reversal of the judgment on Counts III and IV. Appellant’s only specification of error (not in some way dependent upon the evidence presented in support of Counts I and II) is “that it was error to submit Counts III and IV to the jury in that reasonable minds would find that there could be another hypothesis of the testimony adduced which would exclude guilt of the defendant.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, pro vides a standard for reviewing the sufficiency of evidence in a criminal prosecution: “It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” From a review of the record we must and do conclude that the evidence in support of the Government’s case on the last two counts was substantial, and sustains the jury’s verdict on these Counts. From this evidence dealing with these Counts the jury could properly conclude that appellant was guilty beyond a reasonable doubt. The judgment is affirmed. . See also: Miranda v. United States, 9 Cir., 196 F.2d 408, certiorari denied 844 U.S. 842, 73 S.Ct. 55, 97 L.Ed. 655; Thomas v. United States, 93 U.S.App.D.C. 392, 211 F.2d 45, certiorari denied 347 U.S. 969, 74 S.Ct. 780, 98 L.Ed. 1110; Culjak v. United States, 9 Cir., 53 F.2d 554, 82 A.L.R. 480." }, { "docid": "4163964", "title": "", "text": "data which aided our understanding of the problem. Pursuant to this careful analysis of the entire record, we conclude that there was substantial evidence to justify the position taken by the jury that the only damage suffered by the plaintiff was the fair market value of the land and coal actually taken; and that the plaintiff was not entitled to recover severance damages, since the condemnation of the 125 acres did not interfere with the successful mining of the residue of plaintiff’s property. The jury had viewed the land and had heard all the expert testimony, so that it could weigh the various opinions in the light of its recollection of the actual physical characteristics of the tract. The jury then resolved the two conflicting factual contentions in favor of the United States. Accordingly, the doctrine of United States v. Miller, 1942, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed.-, is inapplicable to the instant case. It is elementary that a verdict is conclusive of the facts and cannot be set aside on appeal merely because it is against the weight of the evidence. Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Herencia v. Guzman, 1910, 219 U.S. 44, 31 S.Ct. 135, 55 L.Ed. 81; cf. Vallo v. United States Express Co., 1892, 147 Pa. 404, 23 A. 594, 14 L.R.A. 743, 30 Am.St.Rep. 741. Moreover, when a trial court denies a motion for a new trial, as was done in the instant case, an appellate court will not itself reweigh the evidence if there is substantial evidence to support the verdict. A verdict based on conflicting evidence which is approved by the trial court is therefore conclusive on appeal. See Philadelphia & R. Ry. Co. v. McKibbin, 3 Cir., 1910, 259 F. 476; Oliver v. Bell, 3 Cir., 1939, 103 F.2d 760. For the reasons assigned, we are of the opinion that the trial court properly allowed the verdict of the jury to stand, and the action of the court in denying plaintiff’s motion for a new trial, furnishes" }, { "docid": "478510", "title": "", "text": "$5,-200 thereof without interest and the excess was to be returned to the government. Following the District Court’s denial of motions for a new trial, the owners appealed to this court. Two grounds for reversal are urged: (1) That the amounts provided for by the jury’s verdict as compensation for the lands taken are “absolutely inadequate” and “contrary to the evidence”; and (2) “The Court erred in sustaining the objection to the Offer of Proof of the amount of money received by the plaintiff’s [government’s] witness, Bossen, for 27.07 acres of land.” We think that Foster v. United States, 8 Cir., 1944, 145 F.2d 873, is decisive of appellants’ first contention that the verdicts are inadequate. Therein this court, speaking through Judge Gardner, said at page 877 of 145 F.2d: “It is finally urged that the court erred in not setting aside the verdicts because they were grossly inadequate. The government witnesses fixed the value of the Foster farm at from $21,625 to $25,000. Witnesses for the defendants, on the other hand, fixed its value at from $41,050 to $51,000. The jury determined the value at $31,365. As to the Buescher farm, government witnesses fixed the value from $13,500 to $19,100, while witnesses for the defendant fixed its value at from $33,625 to $39,025, and the jury determined the value at $21,250. The value so determined by the jury was within the scope of the testimony, and hence, it is sustained by substantial evidence. We do not pass upon the weight of the evidence, and the trial court has denied defendant’s motion for a new trial. In these circumstances, the verdicts, being supported by substantial evidence, even though there may be a conflict in the evidence, must be sustained. Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892; Love v. United States, supra [8 Cir., 141 F.2d 981]; O’Donnell v. United States, 8 Cir., 131 F.2d 882.” (Emphasis supplied.) Similarly, it was said in Love v. United States, 8 Cir., 1944,141 F.2d 981, 982: “Clearly the verdict was within the scope of the testimony. It can not" }, { "docid": "23489478", "title": "", "text": "was insufficient to support a verdict of guilty. The motion was overruled and the defendant without offering any evidence on his own behalf rested and renewed his motion, which motion was again overruled. In the argument the defendant contends that the Government failed to prove the material allegations in counts III and IV by competent evidence, in that the testimony of C. T. Studley was so contradictory as to have no probative value and that Studley was an accomplice and there was no corroboration of his testimony. It Yirill be borne in mind that C. T. Studley is the person named in the counts to whom the defendant is alleged to have sold the gasoline without receiving ration coupons therefor and who paid the defendant a sum in excess of the lawful maximum tank wagon price in force at the time. The testimony of the witness is positive and supports the allegations in each count. In 9 Cyclopedia of Federal Procedure, § 4332, p. 455, it is said: “The rules that an appellate court cannot weigh the evidence nor pass on the credibility of witnesses, and hence will not disturb a conviction on conflicting evidence if there was any testimony proper to go to the jury in support of the verdict, are so well settled by a multitude of federal decisions that it is deemed a waste of space to cite more than a few of the decisions so holding.” In Ryan v. United States, 8 Cir., 99 F.2d 864, 866, this court said: “The jury having found the appellant guilty, we must accept that view of the evidence which is most favorable to the Government. Walker v. United States, 8 Cir., 93 F.2d 383; Galatas v. United States, 8 Cir., 80 F.2d 15; Marx v. United States, 8 Cir., 86 F.2d 245.” Again on page 868 of 99 F.2d in the same case this court said: “The mere fact that a witness’ testimony may to some extent be self-contradictory does not prevent its constituting substantial evidence. Craig v. United States, 9 Cir., 81 F.2d 816. The credibility of the" }, { "docid": "23329439", "title": "", "text": "warrant reversal: “I would have sustained a verdict for a lárger recovery, but I cannot say that one would have been set aside as grossly inadequate for a smaller amount.” Holding such balanced opinion, he properly let the verdict of the jury stand. 5. Appellants assert that the trial court erred in refusing .to grant a new trial upon newly discovered evidence, tendered with supporting affidavits. These affidavits merely attack the credibility of the witnesses Chapman and Ownby. Impeachment of Chapman was sought by the production of a letter he wrote on December 11, 1931, in which he stated that he did not claim to be a judge of land values and was compelled to rely upon the opinion of others. Ownby was assailed with respect to an alleged misstatement in his testimony, to the effect that certain property was covered with virgin timber. The alleged newly discovered evidence related solely to the weight to be given the testimony of two witnesses to values. The subject matter was cumulative. Granting or refusing a new trial upon newly discovered evidence of a contradictory and impeaching character rests in the sound discretion of the trial court. Chambers v. Anderson, 58 F.(2d) 151 (C.C.A.6) ; Salmon Falls Mfg. Co. v. Midland Tire & Rubber Co., 285 F. 214 (C.C.A.6); Glenberg v. United States, 281 F. 816 (C.C.A.6). In Tate v. Baugh, 264 F. 892 (C.C.A. 6), we found no abuse of discretion in the refusal of the trial judge to grant a new trial on the ground of newly discovered evidence; and, in Hale v. United States, 67 F.(2d) 673, 674, we pointed out that it should “be noted that the character of the newly discovered evidence was cumulative.” The Court of Appeals for the Fifth Circuit- cited with approval Chambers v. Anderson, supra, and said: “The assignments on the refusal to grant a new trial for newly discovered evidence must also be overruled. The record shows that the court took oral testimony on the hearing of this motion; that he heard the witnesses at length, and fully informed himself of the nature" }, { "docid": "11981398", "title": "", "text": "Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439. Certain exceptions have been noted, such as instances where the trial court has ‘erroneously excluded from consideration matters which were appropriate to a decision on the motion’. Fairmount Glass Works v. Cub Fork Coal Co., supra, 287 U.S. page 483, 53 S.Ct. page 255, 77 L.Ed. 439. * * * “Certainly, denial of a motion for a new trial on the grounds that the verdict was against the weight of the evidence would not be subject to review. Moore v. United States, 150 U.S. 57, 61, 62, 14 S.Ct. 26, 28, 37 L.Ed. 996; J. W. Bishop Co. v. Shelhorse, 4 Cir., 141 F. 643, 648; O’Donnell v. New York Transp. Co., 2 Cir., 187 F. 109, 110. In substance no more than that is involved here.” However, when there is substantial evidence to support the verdict of the jury there can be no question of an abuse of discretion, by the trial judge, in refusing a motion to set the verdict aside. A study of the record shows that there was evidence before the jury that the land in question was of less value than the amount of the verdict; that sales of property in the immediate neighborhood were at a less price per acre than that fixed in the verdict; and that the jury took what was held by the trial judge to be a very comprehensive view of the land, one day of the trial being devoted to that purpose, with competent guides and attendants. The fact that the jury followed the valuation fixed by some of the witnesses for the condemnor rather than the much larger values given by witnesses for the condemnees is no evidence of error. The jury that heard the witnesses and saw their demeanor on the witness stand had the right to believe some witnesses and discard the evidence of others. We are of the opinion that the trial judge was right in holding that there was substantial evidence to support the verdict of the jury. The" } ]

[ { "docid": "15113450", "title": "", "text": "Currier patent by Clausen’s pursuit of identical claims, or if not es-topped, Clausen’s claims and argument before the Patent Office imputed to the appellees are at least strong evidentiary support for and endorsement of Currier’s -claims, and that the appellees should not now be heard in support of Smythe as an anticipation because such argument is inexplicably repugnant to the position taken by the appellees in support of Clausen’s application. The Cutler Case, however, furnishes no support for invoking the doctrine of •estoppel in present circumstances, and even though the court therein attached great importance to an earlier inconsistent position ■of the infringing defendant as pointing to validity of claims subsequently attacked, the same court in a later case appears to have receded from its ruling even to this extent, Allbright-Nell Company v. Autosteam Process Co., 7 Cir., 70 F.2d 959, for the law is clearly settled that however in•consistent an early attempt to secure a -patent may be with a later challenge to its validity for want of invention, such iucon•sistency affords no basis for an estoppel, nor does it preclude the court from relieving the alleged infringer from the asserted monopoly, Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 55 S.Ct. 449, 79 L.Ed. 997; Haughey v. Lee, 151 U.S. 282, 285, 14 S.Ct. 331, 38 L.Ed. 162, and this court has likewise so decided. McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12. The public is always a third party to an infringement suit, and its rights may not be waived by the conduct of alleged infringers, however repugnant to their later contentions. The elements of Claim 33 of Currier include “in a telephone exchange system” (1) calling and called subscribers’ lines, (2) a link circuit connected with the calling line, (3) a signaling device associated with the link circuit, (4) an interrupter mechanism, (5) a relay, (a) conditioned for operation when the linked circuit is connected with a called line, and (b) operated upon the restoration of the receiver to the switch hook by the calling'subscriber, and (6) a. second relay, (a)" } ]

[ { "docid": "12748575", "title": "", "text": "consider whether any of them are anticipated, as we think that, in the light of the prior art, none of them embodies anything more than mere mechanical skill. It certainly did not rise to the dignity of invention to attach the pivot bracket to the door bar in such way as to brace the latter, as covered by the patent firsi mentioned, or to use a latch with a curved end for engagement with a hook to prevent spreading of the sides of the hopper, or to attach the latch to the door bar instead of to the door, as covered by the second patent. Likewise, we think that it did not require the exercise of the inventive faculty to place the latch flatly against the side of the door bar to relieve the strain on the pivot, as covered by the third patent mentioned, nor to reduce the breadth of the outer end of the projecting door bar and provide it with a marginal flange so as to shorten the hook, as covered by the fourth patent. Given the operating principle of the main patent, all these were mere improvements within the reach of ordinary mechanical skill. See Stelos Co. v. Hosiery Motor-Mend Corporation, 55 S. Ct. 746, 79 L. Ed. -; Paramount Publix Corporation v. American Tri-Ergon Corporation, 55 S. Ct. 449, 79 L. Ed. 997; Keystone Driller Co. v. Northwest Engineering Corporation, 294 U. S. 42, 55 S. Ct. 262, 79 L. Ed. 747; Saranac Machine Co. v. Wirebounds Co., 282 U. S. 704, 714, 51 S. Ct. 232, 75 L. Ed. 634; Smith v. Magic City Club, 282 U. S. 784, 792, 51 S. Ct. 291, 75 L. Ed. 707; Powers-Kennedy Contracting Corp. v. Concrete Mixing & Conveying Co., 282 U. S. 175, 186, 51 S. Ct. 95, 75 L. Ed. 278. For the reasons stated, the decree appealed from will be reversed in so far as it failed to find infringement of Kadel and Pilcher patent No. 1,268,725 in the use by defendant of the Enterprise and X. L. T. devices to which we have" }, { "docid": "22200882", "title": "", "text": "check to be inserted in the trade journals and offered them for sale. It is also suggested, as evidence of criminality, that the defendant first offered $3,500 and then $5,000 to settle the controversy. The great delay and expense attendant upon patent litigation are well known to all experienced persons; and heretofore it has not been supposed that an offer to compromise a disputed claim was evidence of liability. It has never been received as evidence of fraud. Hoeltke on his part demanded $75,000 at one time, and $100,000 at another. The filing of the application for the Van Horn patent, the subsequent participation in the interference proceedings, the failure to follow them up, and the abandonment of the application for the patent were done upon the advice of counsel. Unless one starts with a presumption of fraud, these actions have no tendency to show fraud in view of the circumstances already discussed; for they merely show that the applicants for the Van Horn patent adopted the usual way to raise the question of patentability of the Hoeltke device in the Patent Office. The fact that the defendant, through its employee, made application for a patent on a device which may involve the same principles as that of the Hoeltke structure, does not preclude the defendant from alleging now that the Hoeltke device lacks invention. The Supreme Court has recently reiterated the rule that there is no estoppel under such circumstances. See Paramount Publix Corp. v. American Tri-Ergon Corp., 55 S. Ct. 449, 455, 79 L. Ed. 997, where it is said: “However inconsistent this early attempt to procure a patent may be with petitioner’s present contention of its invalidity for want of invention, this Court has long recognized that such inconsistency affords no basis for an estoppel, nor precludes the court from relieving the alleged infringer and the public from the asserted monopoly when there is no invention. Haughey v. Lee, 151 U. S. 282, 285, 14 S. Ct. 331, 38 L. Ed. 162.” It may be added that Hoeltke laid his charges against the defendant and its representatives" }, { "docid": "23254388", "title": "", "text": "in its subject matter.” Radiator Speciality Co. v. Buhot, 3 Cir., 39 F.2d 373, 376. At the time of that opinion, there was trial de novo in appellate courts in patent cases. . See Doehler Metal Furniture Co., Inc., v. United States, 2 Cir., 149 F.2d 130, 135. . “It is the public interest which is dominant in the patent system.” Mercoid Corporation v. Mid-Continent Investment Co., 320 U.S. 661, 665, 64 S.Ct. 268, 271, 88 L.Ed. 376. . See Myers v. Beall Pipe & Tank Corporation, D.C., 90 F.Supp. 265, 268. . Conflicting views of appellate courts concerning the validity of the same patent has led the Supreme Court to grant cer-tiorari in many cases. For example, see Jungersen v. Ostby & Barton Co., 335 U.S. 560, 69 S.Ct. 269, 93 L.Ed. 235; Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Universal Oil Products Co. v. Globe Oil & Refining Co., 322 U.S. 471, 64 S.Ct. 1110, 88 L.Ed. 1399; Cuno Engineering Corporation v. Automatic Devices Corporation, 314 U.S. 84, 62 S. Ct. 37, 86 L.Ed. 58; Maytag Co. v. Hurley Machine Co., 307 U.S. 243, 59 S.Ct. 857, 83 L.Ed. 1264. See also Triplett v. Lowell, 297 U.S. 638, 56 S.Ct. 645, 80 L.Ed. 949. In such cases perforce, the Supreme Court exercises an independent function in relation to facts. . See Smith v. Hall, 301 U.S. 216, 57 S. Ct. 711, 81 L.Ed. 1049, and Smith v. Snow, 294 U.S. 1, 55 S.Ct. 279, 79 L.Ed. 721. . “Besides, the defense of want of patentable invention in a patent operates, not merely to exonerate the defendant, but to relieve the public from an asserted monopoly * * *.” Haughey v. Lee, 151 U.S. 282, 285, 14 S.Ct. 331, 332, 38 L.Ed. 162. It is imperative that the courts do not receive submission of such controversies on an inadequate basis laid by interested parties." }, { "docid": "22200883", "title": "", "text": "of the Hoeltke device in the Patent Office. The fact that the defendant, through its employee, made application for a patent on a device which may involve the same principles as that of the Hoeltke structure, does not preclude the defendant from alleging now that the Hoeltke device lacks invention. The Supreme Court has recently reiterated the rule that there is no estoppel under such circumstances. See Paramount Publix Corp. v. American Tri-Ergon Corp., 55 S. Ct. 449, 455, 79 L. Ed. 997, where it is said: “However inconsistent this early attempt to procure a patent may be with petitioner’s present contention of its invalidity for want of invention, this Court has long recognized that such inconsistency affords no basis for an estoppel, nor precludes the court from relieving the alleged infringer and the public from the asserted monopoly when there is no invention. Haughey v. Lee, 151 U. S. 282, 285, 14 S. Ct. 331, 38 L. Ed. 162.” It may be added that Hoeltke laid his charges against the defendant and its representatives before the Department of Justice of the United States and endeavored to secure a prosecution for crime. Government agents visited the defendant’s factory and made an examination, and, as the result, the idea of criminal prosecution was abandoned. A finding of fraud cannot be made in this case unless the conclusion is reached that the defendant’s witnesses deliberately gave false testimony. Hence it is of the utmost importance to observe the rule repeatedly laid down by this and other courts that the findings of the trial judge in an equity case, who had the opportunity of seeing the witnesses, hearing their story, judging their appearance, manner, and credibility on the question of fact, is entitled to great weight, and will not be set aside unless clearly wrong. Standard Transportation Co. v. Wood Towing Corp. (C. C. A.) 64 F.(2d) 282. The District Judge heard all of the defendant’s important witnesses in person, except one. The record shows that he proceeded with great care and deliberation during the taking of the testimony and afterwards, hearing argument" }, { "docid": "23348824", "title": "", "text": "patent application should be treated no differently than a patent application by a third party. Obviousness protects the public at large, not a particular infringe, and one is not estopped from asserting the invalidity of a patent by the fact that one has previously made an attempt to procure a patent for substantially the same invention. As the Supreme Court concluded in Haughey v. Lee, 151 U.S. 282, 14 S.Ct. 331, 332-33, 38 L.Ed. 162 (1894), “the defense of want of patentable invention in a patent operates, not merely to exonerate the defendant, but to relieve the public from an asserted monopoly, and the court cannot be prevented from so declaring by the fact that the defendant had ineffectually sought to secure the monopoly for himself.” See also Paramount Publix Corp. v. Am. Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 79 L.Ed. 997 (1935) (“However inconsistent this early attempt to procure a patent may be with petitioner’s present contention of its invalidity for want of invention, this Court has long recognized that such inconsistency affords no basis for an estoppel, nor precludes the court from relieving the alleged infringer and the public from the asserted monopoly when there is no invention.”). The Master Lock application thus does not defeat an assertion of obviousness. The failure of Master Lock employees to cite the Down patent as prior art in internal idea disclosure forms when Master Lock was considering filing its own patent application similarly does not defeat an argument of obviousness. What Master Lock employees subjectively knew or believed at the time they were considering filing the '905 patent application is irrelevant. The relevant inquiry is what a hypothetical ordinarily skilled artisan would have gleaned from the prior art references at the time that the patent applications leading to the sleeve patents were filed. See, e.g., Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1364 (Fed.Cir.2001). Second, Wyers argues that Down could not be considered because Master Lock introduced no expert testimony directed to Down. However, as we noted above, expert testimony is not required when the references and" }, { "docid": "9552358", "title": "", "text": "weight and nature, as that if added to the evidence already in the case wotdd reasonably and probably serve to change, or reverse the judgment or decree attacked. It seems clear that the alleged newly discovered facts that Sage, an employee of appellee General Motors Corporation, was induced by it to file in 1923 an application for a patent for a pressure feed oiling system for internal combustion engines; that the fact of such application was kept from appellant, perforce the rules of secrecy of the Patent Office; that Sage abandoned prosecution of his application, when each of his claims made in his application had been rejected on the prior art; and that appellees did not before or at the trial confide any of the above information to appellant, do not constitute either fraud or estoppel; nor do they tend to prove that the device made and used by appellees in 1930, when the infringement suit was begun, infringed the- patent of appellant. He needed no more evidence of validity; the court assumed it, and the presumption as to the validity of it still exists. The right to apply for a patent is free and open to all persons, and estoppel may not be attributed to the fact of such application, and this is true even if it be conceded arguendo that some of the claims of the Sage application, read on appellant’s patent. In the latter event, the facts would not even have estopped the appellees from setting up as they did, or even from proving, as they did not, the invalidity of appellant’s patent. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 455, 79 L.Ed. 997; Haughey v. Lee, 151 U.S. 282, 285, 14 S.Ct. 331, 332, 38 L.Ed. 162. In the case of Haughey v. Lee, supra, the Supreme Court said: “Whether or not there is any inconsistency in trying at one time to get a patent for a supposed invention, and in after-wards alleging, as against a rival successful in obtaining a patent, that there is no novelty in the" }, { "docid": "9552359", "title": "", "text": "the presumption as to the validity of it still exists. The right to apply for a patent is free and open to all persons, and estoppel may not be attributed to the fact of such application, and this is true even if it be conceded arguendo that some of the claims of the Sage application, read on appellant’s patent. In the latter event, the facts would not even have estopped the appellees from setting up as they did, or even from proving, as they did not, the invalidity of appellant’s patent. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 455, 79 L.Ed. 997; Haughey v. Lee, 151 U.S. 282, 285, 14 S.Ct. 331, 332, 38 L.Ed. 162. In the case of Haughey v. Lee, supra, the Supreme Court said: “Whether or not there is any inconsistency in trying at one time to get a patent for a supposed invention, and in after-wards alleging, as against a rival successful in obtaining a patent, that there is no novelty in the invention, it certainly cannot be said to constitute an estoppel. Besides, the defense of want of patentable invention in a patent operates, not merely to exonerate the defendant, but to relieve the public from an asserted monopoly, and the court cannot be prevented from so declaring by the fact that the defendant had ineffectually sought to secure the monopoly for himself.” It seems quite obvious that if this alleged newly discovered evidence had been offered in the trial of the original infringement suit, it would have had no earthly tendency to prove the only issue, namely infringement, vel non, which was decided in that case, and if we add this evidence to the case now, the result would be the same. Infringement ordinarily is present when one person makes, uses, or vends a patented device or article, not when the user, maker, or vendor makes an effort to obtain a patent, for a similar, or even an identical device or article, and ordinarily infringement is to be found and decreed only when on a comparison" }, { "docid": "2146128", "title": "", "text": "procrastination was inexcusable, for “ * * * if he may delay an application for his patent at pleasure, although his invention be carried into public use, he may extend the period beyond what the law intended to give him.” Shaw v. Cooper, 7 Pet. 292, 322, 8 L.Ed. 689. The burden placed upon one who monopolizes a field is heavy. Laches may also be applicable to valid patents, if the article is used by the public without protest. See Dallas Machine & Locomotive Works, Inc. v. Willamette-Hyster Co., D.C., 28 F.Supp. 207; Gillons v. Shell Oil Co., 9 Cir., 86 F.2d 600; Woodmanse & Hewitt Manuf’g Co. v. Williams et al., 6 Cir., 68 F. 489, 492; Window-Glass Mach. Co. v. Pittsburgh Plate Glass Co., 3 Cir., 284 F. 645, 650. It should have been treated by the Patent Office as res adjudicata. In re Becker, Oust. & Pat.App., 74 F.2d 306, 309. The case of Crown Cork & Seal Co. v. Ferdinand Gutmann Co., 304 U.S. 159, 58 S.Ct. 842, 82 L.Ed. 1265, must be differentiated. The applicant here was guilty of laches. The rights of the public had intervened, whereas in that case there was no prior adverse use (304 U.S. page 164, 58 S.Ct. 842, 82 L.Ed. 1265). The facts vouched for by plaintiff here indicate an intention to abandon long prior to the filing of the first patent application. Abandonment is pleaded in this case where it was not in that (304 U.S. page 165, 58 S.Ct. 842, 82 L.Ed. 1265). Here there was a final rejection of substantially the same claims, while the claims although cancelled in that case, were not apparently finally rejected. This conduct of defendant does not preclude “the court from relieving the alleged infringer and the public from the' asserted monopoly when there is no invention”. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 455, 79 L.Ed. 997. Reckendorfer v. Faber, 92 U.S. 347, 355, 23 L.Ed. 719." }, { "docid": "4726518", "title": "", "text": "competitive field, however, he wished patent protection, and kept importuning Barnhart to file an application, not only for double taper shafts, but for multiple taper shafts, and even for designs. It was not until 1934 that Barnhart filed his application. Neither his difficulty nor Heddon’s was in determining the desirable area of fixation. It was in perfecting a machine and dies to commercially vary the diameter of the shaft, and to determine from metallurgists the desirable texture and hardness of steel for the shaft. The patent, however, discloses a product and neither a process nor machine. If Barnhart had patentable concepts upon method or mechanism, they are not here in issue. The contention that the appellee, as assignee of Vickery, is estopped to challenge validity by reason of Vickery’s sustained efforts in interference to obtain the Barnhart claims, must be rejected. Reliance is placed upon Cutler-Hammer Mfg. Co. v. General Electric Co., 7 Cir., 6 F.2d 376, and Roth v. Harris, 2 Cir., 168 F. 279. These cases must, however, yield to controlling authority, Haughey v. Lee, 151 U.S. 282, 14 S.Ct. 331, 38 L.Ed. 162; Paramount Corporation v. Tri-Ergon Corporation, 294 U.S. 464, 477, 55 S.Ct. 449, 79 L.Ed. 997, and our own decisions in Kellogg Switchboard & Supply Co. v. Michigan Bell Telephone Co., 6 Cir., 99 F.2d 203 and McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, in view of the principle that the public has always an interest in the improvident grant of an unmerited monopoly. Indeed, the Seventh Circuit Court of Appeals seems to have departed from the doctrine applied in the Cutler-PIammer case, by its adjudication in Allbright-Nell Co. v. Autosteam Process Co., 7 Cir., 70 F.2d 959. As for the observation by the Court of Appeals for the Second Circuit in Roth v. Harris, supra, that “men do not struggle for years to> secure a valueless thing,” we doubt that such observation would now.be made 'in view of file wrapper history and adjudications in- numerous patent cases which demonstrate, beyond all question, that inventors, without number, do that very thing." }, { "docid": "12585916", "title": "", "text": "his opinion, as a fact not to be overlooked, and having much weight, that the Gately packing went at once into such an extensive public use as almost to supersede all packings made under other methods, and that that fact was pregnant evidence of its novelty, value and usefulness.\" (Italics supplied.) The relationship of this statement and the facts and circumstances of the case before us is too remote to give it any application. Plaintiff charged that after the defendant saw his device it widely advertised a similar supporter which it characterized as “ * * =:= not merely a new design— but a radical step ahead in supporter utility.” It also notified that it had a patent pending. Nevertheless defendant gave as a reason for not exercising its option to take a license from the plaintiff the ground that a search had revealed that the plaintiff’s structure was old. In effect, plaintiff urges, defendant’s conduct and advertisements es-topped it from relying upon the defense of anticipation. In Reidenbach v. A. I. Namm & Sons, D.C., 25 F.Supp. 235, 238, affirmed 2 Cir., 99 F.2d 1013 it was stated that: “To be sure defendants apparently had, and have, the usual idea that they had something new in their garment and have applied for a patent accompanied by the usual advertising campaign calling attention to their product with such words as ‘amazing’, etc. But that does not prevent them from defending this suit. Paramount Publix Corporation v. American Tri-Ergon Cor poration, 294 U.S. 464-476, 55 S.Ct. 449, 79 L.Ed. 997. “As was stated in the above case, ‘such inconsistency affords no basis for an estop-pel, nor precludes the court from relieving the alleged infringer and the public from the asserted monopoly when there is no invention.’ ” So in this case, the inconsistency charged by the plaintiff constitutes no 'basis for precluding relief from the charge of infringement. Plaintiff’s patent No. 2,301,066 must be held to be invalid and in such light it cannot be said that defendant has infringed it. An examination of plaintiff’s patent, the Cartledge British patent and" }, { "docid": "23259002", "title": "", "text": "in all the prior devices the stiff projecting striker -would, in time, sag or hang down more or less, thus practically exemplifying the same method of operation as that of the complainant. It likewise appears that the idea of employing a dependent striker, loosely jointed to a leg strap, was not original with the patentee. Such a,pendant was used in devices to prevent kicking, and no invention would seem to be exercised in adapting the device to the new purpose of curing interference. - The further contention, that the plaintiff’s striker taps the leg to which it is attached as well as’ the opposite leg, presents no substantial difference. As observed by the court below, every such device used strikes and rubs the leg to which it is attached, as wheuever the projecting striker is hit by the opposing leg the blow is communicated to the -other. Nor is such supposed function described or referred to in the specification or claim of the plaintiff’s patent. ■ In view, then, of the state of the art, as shown to exist by the defendants’ evidence, the court below was right in finding that the complainant’s device exhibits no patentable novelty. There is no merit in the proposition made in the second assignment of error, that defendants are estopped from asserting that there is no patentable novelty in plaintiff’s invention, by their conduct in seeking to procure, .through one of their employés, a patent for substantially the same invention. Whether or not there is any inconsistency in trying, at one time, to get a patent for a supposed invention, and in after-wards alleging, as against a rival successful in obtaining a patent, that there is no novelty in the invention, it certainly cannot be said to constitute an estoppel. Besides, the defence of want of patentable invention in a patent operates not merely to' exonerate the defendant, but to relieve the public from an asserted monopoly, and the court cannot be prevented from so declaring by the fact that the defendant ha.d ineffectually sought to secure the monopoly for himself. The decree of" }, { "docid": "13095110", "title": "", "text": "an old process to a new and closely analogous subject-matter, plainly indicated, by the prior art as an appropriate subject of the process, is not invention.” Paramount Publix Corporation v. American Tri-Ergon Corporation, 294 U.S. 464, 55 S.Ct. 449, 453, 79 L.Ed. 997; Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Cuno Engineering Corporation v. Automatic Devices Corporation, 314 U.S. 84, 62 S.Ct. 37, 86 L. Ed. 58. Invention is not shown because the patentee in suit specified in his claims exact temperature and time limitations required in the performance of his steps. For example, the slicing temperature range of 30° to 32° F. is broadly covered in the disclosure of the McKee patent 2,137,897, which specifies 0° fo 32° F. The greater always includes the lesser. Newton Steel Co. v. Surface Combustion Col, 6 Cir., 75 F.2d 305. Commercial success alone is not sufficient to validate a patent. Heath v. Frankel, 9 Cir., 153 F.2d 369; Standard Parts, Inc., v. Toledo Pressed Steel Co., 6 Cir., 93 F.2d 336; Weidhaas v. Loew’s, Inc., 2 Cir., 125 F.2d 544, in which certiorari denied, 316 U.S. 684, 62 S.Ct. 1285, 86 L.Ed. 1757. The evidence discloses that prior uses the process described in the patent in suit were made by the defendant and others in the preparation of “StratoSteaks”. .The statuté requires that the alleged invention be not known or used by others before the patentees’ invention or discovery thereof. Title 35 U.S.C.A. § 31; Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651; Barber v. Otis Motor Sales Co., 2 Cir., 271 F. 171, certiorari denied 256 U.S. 693, 41 S.Ct. 535, 65 L.Ed. 1175; Torrey v. Hancock, 8 Cir., 184 F. 61; National Mach. Corp. v. Benthall Mach. Co., Inc., 4 Cir., 241 F. 72; Columbus Dental Mfg. Co. v. Ideal Interchangeable Tooth Co., Inc., 1 Cir., 294 F. 422. The claims in the patent in suit are broader and more indefinite than the alleged invention, .as its claims specify in performing the" }, { "docid": "23348823", "title": "", "text": "have perceived a reasonable expectation of success as a result of combining these two elements of the prior art references. See In re O’Farrell, 853 F.2d 894, 904 (Fed.Cir.1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.”). None of Wyers’ arguments to the contrary is convincing. First, Wyers argues that Master Lock did not consider Down to be invalidating prior art in its own patent application for its convertible sleeve. Wyers filed the '115 patent application in April of 2000. Master Lock independently filed a patent application in February of 2001 that issued as U.S. Patent No. 6,862,905 (the “'905 patent”), claiming a pin lock with a cylindrical locking mechanism that includes a locking disc; the patent also claimed a “sleeve dimensioned to slide over ... a portion of said first locking member.” '905 patent col.6 11.49-50. However, Master Lock’s '905 patent application, while claiming a convertible sleeve, see id. col.6 11.50-52, did not claim that the sleeve represented a novel aspect of the invention. Moreover, Master Lock’s patent application should be treated no differently than a patent application by a third party. Obviousness protects the public at large, not a particular infringe, and one is not estopped from asserting the invalidity of a patent by the fact that one has previously made an attempt to procure a patent for substantially the same invention. As the Supreme Court concluded in Haughey v. Lee, 151 U.S. 282, 14 S.Ct. 331, 332-33, 38 L.Ed. 162 (1894), “the defense of want of patentable invention in a patent operates, not merely to exonerate the defendant, but to relieve the public from an asserted monopoly, and the court cannot be prevented from so declaring by the fact that the defendant had ineffectually sought to secure the monopoly for himself.” See also Paramount Publix Corp. v. Am. Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 79 L.Ed. 997 (1935) (“However inconsistent this early attempt to procure a patent may be with petitioner’s present contention of its invalidity for want of invention, this Court has long recognized that such" }, { "docid": "4726519", "title": "", "text": "v. Lee, 151 U.S. 282, 14 S.Ct. 331, 38 L.Ed. 162; Paramount Corporation v. Tri-Ergon Corporation, 294 U.S. 464, 477, 55 S.Ct. 449, 79 L.Ed. 997, and our own decisions in Kellogg Switchboard & Supply Co. v. Michigan Bell Telephone Co., 6 Cir., 99 F.2d 203 and McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, in view of the principle that the public has always an interest in the improvident grant of an unmerited monopoly. Indeed, the Seventh Circuit Court of Appeals seems to have departed from the doctrine applied in the Cutler-PIammer case, by its adjudication in Allbright-Nell Co. v. Autosteam Process Co., 7 Cir., 70 F.2d 959. As for the observation by the Court of Appeals for the Second Circuit in Roth v. Harris, supra, that “men do not struggle for years to> secure a valueless thing,” we doubt that such observation would now.be made 'in view of file wrapper history and adjudications in- numerous patent cases which demonstrate, beyond all question, that inventors, without number, do that very thing. In view of our conclusion that Barn-hart’s claims are invalid for lack of invention, it becomes unnecessary to consider questions of priority or infringement, and The judgment below is affirmed." }, { "docid": "13095109", "title": "", "text": "evidence, each of the steps of the process described and claimed in the patent in suit and the combination of such process steps has been heretofore taught by the disclosures of' the prior arts' disclosed by the patents to Taylor, Nos. 1,864,-284, and 1,864,285,' and patents to McKee Nos. 2,140,162 and 2,137,897. • The patent office was misled and did not consider the prior art patents of the McKee and Taylor patents in granting the application for the patent in suit and, due to such failure, is of particular significance with respect to the presumption of validity which normally would aid in upholding it is destroyed. Hann v. Venetian Blind Corporation, D.C., 21 F.Supp. 913; Mettler v. Peabody Engineering Corp., 9 Cir., 77 F.2d 56. The process of preparing meat by the specific steps of the patent in suit is old in the art, therefore, invention is not shown. The' Supreme Court has said that, “ * * * To claim the merit of invention, the patented process must itself possess novelty. The application of an old process to a new and closely analogous subject-matter, plainly indicated, by the prior art as an appropriate subject of the process, is not invention.” Paramount Publix Corporation v. American Tri-Ergon Corporation, 294 U.S. 464, 55 S.Ct. 449, 453, 79 L.Ed. 997; Dow Chemical Co. v. Halliburton Oil Well Cementing Co., 324 U.S. 320, 65 S.Ct. 647, 89 L.Ed. 973; Cuno Engineering Corporation v. Automatic Devices Corporation, 314 U.S. 84, 62 S.Ct. 37, 86 L. Ed. 58. Invention is not shown because the patentee in suit specified in his claims exact temperature and time limitations required in the performance of his steps. For example, the slicing temperature range of 30° to 32° F. is broadly covered in the disclosure of the McKee patent 2,137,897, which specifies 0° fo 32° F. The greater always includes the lesser. Newton Steel Co. v. Surface Combustion Col, 6 Cir., 75 F.2d 305. Commercial success alone is not sufficient to validate a patent. Heath v. Frankel, 9 Cir., 153 F.2d 369; Standard Parts, Inc., v. Toledo Pressed Steel Co.," }, { "docid": "12585917", "title": "", "text": "D.C., 25 F.Supp. 235, 238, affirmed 2 Cir., 99 F.2d 1013 it was stated that: “To be sure defendants apparently had, and have, the usual idea that they had something new in their garment and have applied for a patent accompanied by the usual advertising campaign calling attention to their product with such words as ‘amazing’, etc. But that does not prevent them from defending this suit. Paramount Publix Corporation v. American Tri-Ergon Cor poration, 294 U.S. 464-476, 55 S.Ct. 449, 79 L.Ed. 997. “As was stated in the above case, ‘such inconsistency affords no basis for an estop-pel, nor precludes the court from relieving the alleged infringer and the public from the asserted monopoly when there is no invention.’ ” So in this case, the inconsistency charged by the plaintiff constitutes no 'basis for precluding relief from the charge of infringement. Plaintiff’s patent No. 2,301,066 must be held to be invalid and in such light it cannot be said that defendant has infringed it. An examination of plaintiff’s patent, the Cartledge British patent and the physical specimens of plaintiff’s and defendant’s devices, leads to the conclusion that both plaintiff and defendant have borrowed generously from the Cartledge British patent, an old skill well known in the art. Therefore defendant’s motion for a summary motion in its favor on the ground that plaintiff’s patent No. 2,301,066 is invalid, is granted. Upon such a holding defendant’s counterclaim for a declaratory judgment that plaintiff’s patent is invalid raises no issue not disposed of in the summary judgment and it should be withdrawn or dismissed. An order should be settled in conformity with this opinion." }, { "docid": "23259003", "title": "", "text": "as shown to exist by the defendants’ evidence, the court below was right in finding that the complainant’s device exhibits no patentable novelty. There is no merit in the proposition made in the second assignment of error, that defendants are estopped from asserting that there is no patentable novelty in plaintiff’s invention, by their conduct in seeking to procure, .through one of their employés, a patent for substantially the same invention. Whether or not there is any inconsistency in trying, at one time, to get a patent for a supposed invention, and in after-wards alleging, as against a rival successful in obtaining a patent, that there is no novelty in the invention, it certainly cannot be said to constitute an estoppel. Besides, the defence of want of patentable invention in a patent operates not merely to' exonerate the defendant, but to relieve the public from an asserted monopoly, and the court cannot be prevented from so declaring by the fact that the defendant ha.d ineffectually sought to secure the monopoly for himself. The decree of the court below is accordingly Affirmed." }, { "docid": "22151692", "title": "", "text": "47 F.2d 704, 712, the court said: “It seems that no one did discover this exact use for the locknut in combination with other elements up to Buchanan’s time, but some one had to think of it first, even if it constituted merely mechanical skill. The fact that Buchanan was the first so to think bears on the question of invention, but is not at all decisive.” Appellant advances the “long-felt want” argument. But it has often been held that commercial success is a relatively poor test of invention and that it is only when invention is in considerable doubt, as it is not here, that that factor has any significance. See, e.g., Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 474, 55 S.Ct. 449, 79 L.Ed. 997; DeForest Radio Co. v. General Electric Co., 283 U.S. 664, 685, 51 S.Ct. 563, 75 L.Ed. 1339; Textile Machine Works v. Louis Hirsch Textile Machines, 302 U.S. 490, 58 S.Ct. 291, 82 L.Ed. 382. 2. Patent No. 2,120,230. This is a patent for a twin-filter respirator in the form of a transverse wedge, with a foldable rubber body. The prior art discloses that a British patent on a twin-filter device had been previously issued. See Goeke’s British Patent No. 323,164. Appellant simply added the characteristic of foldability to Goeke’s patent. But a foldable respiratory mask was already part of the prior art, for appellee had previously obtained such a patent on January 21, 1919. Certainly, thus to combine two ideas, both part of the prior art, was not invention. Cuno Corp. v. Automatic Service Corp., supra; Cf. Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 355, 356, 59 S.Ct. 897, 83 L.Ed. 1334; Powers-Kennedy Contracting Corp. et al. v. Concrete Mixing & Conveying Co., 282 U.S. 175, 51 S.Ct. 95, 75 L.Ed. 278. 3. Patent No. 2,000,064. The appeal as to this patent must be dismissed for the fol lowing reasons: In his pleadings in the trial court, appellant alleged that appellee had infringed and still is infringing the patent and “will continue to do so unless" }, { "docid": "11914588", "title": "", "text": "was issued until after the conduct complained of. Moreover, appellee’s conduct could be said to induce appellant to believe only that appellee contended the alleged invention was patentable. Appellant had no right to believe appellee was correct, to the exclusion of what the prior art plainly disclosed. In addition, appellant could not have changed his position or taken a different position to the one he actually took, in reliance upon any conduct of appellee. He took the position that the alleged invention was patentable before any of the conduct complained of occurred, by filing his application, and could not have done so by reason of any conduct of appellee. He, thereafter, at no time, changed that position, and actually asserts the same view here. Under these circumstances, we think there can be no estoppel urged here. Affirmed. McCarty v. Lehigh Valley Railroad Co., 160 U.S. 110, 120, 16 S.Ct. 240, 40 L.Ed. 358; Holliday v. Pickhardt, C.C.N.Y., 29 F. 853, 859. Paramount Corp. v. Tri-Ergon Corp., 294 U.S. 464, 477, 55 S.Ct. 449, 79 L.Ed. 997; Haughey v. Lee, 151 U.S. 282, 285, 14 S.Ct. 331, 38 L.Ed. 162; Stoody Co. v. Mills Alloys, 9 Cir., 67 F.2d 807, 811; National Mach. Co. v. Wheeler & Wilson Manufg. Co., 2 Cir., 79 F. 432, 441, certiorari denied, 166 U.S. 722, 17 S.Ct. 997, 41 L.Ed. 1188; McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, 14; Root Spring Scraper Co. v. Willett Mfg. Co., 6 Cir., 84 F.2d 42; Kellogg Switchboard & S. Co. v. Michigan Bell Tel. Co., 6 Cir., 99 F.2d 203, 205; Allbright-Nell Co. v. Autosteam Process Co., 7 Cir., 70 F.2d 959, 961; Steel Protected Concrete Co. v. Central I. & C. Co., C.C.La., 155 F. 279, 285; Holliday v. Pickhardt, C.C.N.Y., 29 F. 853, 859; Lipper Manufacturing Co. v. American Brand Trimming, D.C.N.Y., 54 F.2d 786, affirmed, 2 Cir., 54 F.2d 787." }, { "docid": "7889755", "title": "", "text": "a single device previously in general use. It is enough if the evidence, taken as a whole, discloses that all of the claimed elements are found in different prior patents in the art or in different devices previously in general use, and no new functional relationship arises from their combination.” Lyman Gun Sight Corp. v. Redfield Gun Sight Corp., 10 Cir., 87 F.2d 26, 28. And in two cases involving far greater contributions to industry than appellants here offer, the Supreme Court, reversing the Second Circuit, held that the application of mechanical skills to an old problem, through a combination of known devices, did not in those instances constitute invention. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 55 S.Ct. 449, 79 L.Ed. 997; Altoona Publix Theatres v. American Tri-Ergon Corp,, 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1095. Further, this is an area in which we must give great weight to the concurrent findings of the District Court and of the Patent Office. Abbott v. Coe, 71 App. D.C. 195, 297, 109 F.2d 449. But even exercising the full measure of latitude we have in dealing with problems of this sort, Standard Oil Development Co. v. Marzall, 86 U.S.App.D.C. —, 181 F.2d 280, after careful review of the record, we must still affirm the determination of the District Court. III. Appellants urge upon us, as proof of invention, the commercial success of their machine, as compared with the preexisting devices. Such success, assuming it to have been established, is at best some evidence of invention; certainly it is no substitute for the novelty and creation which are the pre-requisites of patentability. Altoona Publix Theatres v. American TriErgon Corp., 294 U.S. 477, at 487, 55 S.Ct. 455, 79 L.Ed. 1005. A related contention is that the prior patents in the field (Sussman, Schneider, Isaacs, Cutter) fail in certain respects to show operative machines. But the evidence offered by appellants on this point was, to say the least, weak and inconclusive. We find nothing in the record to convince us of the alleged inoperativeness of those portions of" } ]

[ { "docid": "16071344", "title": "", "text": "claim and we need not engage in a cause- and-prejudice analysis before reaching the substance of Mitchell’s claim. C. Application of AEDPA The threshold question under AEDPA is whether Mitchell seeks to apply a rule of law that was clearly established at the time his state court conviction became final. Williams, 529 U.S. at 390, 120 S.Ct. 1495. There is no doubt that the rule of law that Mitchell seeks to apply — the “per se” ineffective assistance of counsel rule — was clearly established by the Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court held that an appeals court must reverse a criminal defendant’s conviction “without any specific showing of prejudice to defendant when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039. In other words, when counsel is totally absent during a critical stage of the proceedings, prejudice must be presumed. In Williams, the Supreme Court confirmed the vitality of this “per se” approach, noting that while the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel, requiring proof of deficient performance and prejudice, provides guidance for resolving virtually all ineffective assistance of counsel claims, there are “a few situations in which prejudice may be presumed.” Williams, 529 U.S. at 391, 120 S.Ct. 1495 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). We have recently applied the presumption-of-prejudice test to a claim of ineffective assistance of counsel. Olden, 224 F.3d at 568 (prejudice is presumed when counsel is absent during prosecution’s presentation of evidence that implicates defendant because such absence occurred during “critical stage” of trial). Thus, we easily reach the conclusion that it was clearly established by the Supreme Court, as of the time that Mitchell’s case was decided in state court, that the “complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice.” Roe v." } ]

[ { "docid": "11451752", "title": "", "text": "outcome.” Id. at 694, 104 S.Ct. 2052. Although Strickland’s requirement of an individualized inquiry into defense counsel’s performance provides the general framework for analyzing ineffective-assistance-of-counsel claims, an irrebuttable presumption of prejudice applies in very limited circumstances. United States v. Cronic, 466 U.S. 648, 658-62, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (noting that “[t]here are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified”). The complete absence of counsel, or the denial of counsel at a critical stage of a defendant’s trial, for example, violates a defendant’s Sixth Amendment right to counsel without a showing of prejudice. Id. at 659 & n. 25, 104 S.Ct. 2039. In addition, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id. at 659, 104 S.Ct. 2039. This possibility of constructive denial of counsel is limited to situations involving “constitutional error of the first magnitude,” which cannot be cured even if no prejudice is shown. Id. (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in which the defendant was denied the right of effective cross-examination). “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 659 n. 26, 104 S.Ct. 2039. Finally, there may be “some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. 2039. The Supreme Court explained in Cronic that Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), a case in which defense counsel was not appointed until the very day of trial, was" }, { "docid": "10087677", "title": "", "text": "80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court held that there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658, 104 S.Ct. 2039. In other words, where the error is so obvious that a court should be aware of the threat to a defendant’s Sixth Amendment right to counsel, courts may do away with Strickland’s prejudice analysis altogether. Id. at 658-59, 104 S.Ct. 2039. See, e.g., United States v. Herrera-Zuniga, 571 F.3d 568, 591-93 (6th Cir. 2009) (discussing possibility that defense counsel’s submission of a letter to the court castigating his client and describing him as unworthy of empathy and “at the bottom of society’s hierarchy” as apparent professional malfeasance potentially constituting per se ineffectiveness); Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997) (per se violation of the right to counsel where the defense attorney displayed continual hostility to and contempt for his client). Cronic, not Strickland, applies “when ... the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate.” Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. In explaining Cronic, the Supreme Court has identified three situations where a defendant need not show prejudice to establish ineffective assistance of counsel: First and “[mjost obvious” was the “complete denial of counsel.” . . . Second, we posited that a similar presumption was warranted if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Finally, we said that in cases like Powell v. Alabama where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected. Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted). II. Not surprisingly, the majority does not acknowledge that constructive denial of counsel “can occur under circumstances where even competent counsel could not render assistance,” i.e., Cronic’s third scenario. United States v. Morris, 470 F.3d 596, 602 (6th" }, { "docid": "14960328", "title": "", "text": "required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision-was not contrary to or an unreasonable application of clearly established federal law. Id. at 77, 127 S.Ct. 649 (emendations in original). Similarly, in Van Patten, the Court held that it was not clearly established that a defendant received ineffective assistance of counsel if his lawyer represented him via speaker-phone, rather than by being physically present in the courtroom. 128 S.Ct. at 746-47. The Seventh Circuit had granted habeas relief on the basis of United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which held that in certain circumstances a defendant need not prove that he was actually prejudiced by his attorney’s conduct. The logic of Cronic is that, in some situations, “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. 2039. One situation in which Cronic applies is when “counsel[is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Id. at 659 n. 25, 104 S.Ct. 2039. The Court reversed the Seventh Circuit because Cronic did not clearly apply to the facts at hand. Van Patten, 128 S.Ct. at 746. Although an attorney who participated in a hearing telephonically might not do as well as one who was physically present in the courtroom, the state court could reasonably believe that the attorney’s performance would not be so poor as to justify relief without showing prejudice: “Our cases provide no categorical answer to this question.” Id. In Panetti, 551 U.S. 930, 127 S.Ct. 2842, by contrast, there was no principled way to apply the Court’s precedent to a somewhat new factual situation and reach the state court’s result; thus, the Court granted habeas relief. Panetti concerned the pending execution of person with a history of mental illness. 127 S.Ct. at 2848-49. The Court identified the controlling" }, { "docid": "7648776", "title": "", "text": "constitutional muster. See id. at 610-11. After a thorough review of the record, we are convinced that the undisputed amount of time that Evelyn spent with Mitchell prior to jury selection and the start of trial — approximately six minutes spanning three separate meetings in the bullpen, when viewed in light of Evelyn’s month-long suspension from practice immediately prior to trial — constituted a complete denial of counsel at a critical stage of the proceedings. The Michigan Supreme Court’s evaluation of Mitchell’s ineffective assistance claim under the Cronic standard for per se prejudice reflects a misunderstanding and misapplication of that Supreme Court precedent. We conclude that, in insisting on evaluating Mitchell’s claim under the Strickland standard for ineffective assistance of counsel, the Michigan Supreme Court erroneously and unreasonably applied clearly established Supreme Court law set forth in Cronic. E. Constructive Denial of Counsel In Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the Supreme Court defined the differences between claims governed by Strickland and claims governed by Cronic. If a claim is governed by Strickland, a defendant must typically demonstrate that specific errors made by trial counsel affected the ability of the defendant to receive a fair trial. If a claim is governed by Cronic, however, the defendant need not demonstrate any prejudice resulting from the lack of effec tive counsel; in some cases, the Sixth Amendment violations are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. 2039. Three types of cases warrant Cronic’s presumption-of-prejudice analysis. The first is the complete denial of counsel, in which “the accused is denied the presence of counsel at ‘a critical stage.’ ” Bell, 122 S.Ct. at 1851 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039). The second is when counsel “ ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ ” Id. (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039). The third is when counsel is placed in circumstances in which competent counsel very likely could" }, { "docid": "21783795", "title": "", "text": "thing as an absence of assistance. Because Askins served as an advocate for Glover and tested the State’s case through the adversarial system, Glover cannot show that he was constructively denied his right to counsel. 3. The third reason for finding perse prejudice is if “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. Since 1984, the time the Court articulated the tests for actual and per-se prejudice in Strickland and Cronic, it has never once found per-se prejudice under this third prong of Cronic. In Cronic, the Supreme Court confronted the issue of a young real-estate lawyer who was allowed only 25 days of pretrial preparation in a complex mail fraud case. See Cronic, 466 U.S. at 649, 104 S.Ct. 2039. The Court held that despite a limited time to investigate and prepare the case, the limited experience of counsel, the gravity of the charge, the complexity of possible defenses, and the limited accessibility of witnesses to counsel, a per-se rule of prejudice was not appropriate. See id. at 652, 663, 104 S.Ct. 2039. Glover can point to only one case, Poioell v. Alabama, in which the Court has found a presumption of ineffectiveness based on the circumstances surrounding the defendant’s representation. See Powell, 287 U.S. at 45, 53 S.Ct. 55. Powell, decided in 1932, involved the infamous trial of several African-American men who faced the death penalty for raping a white woman on a train in Alabama. See Powell, 287 U.S. at 49-50, 53 S.Ct. 55. The defendants in Powell were not asked “whether they had, or were able to employ, counsel, or wished to have counsel appointed.” Id. at 52, 53 S.Ct. 55. Instead, the court appointed “ ‘all the members of the bar’ ” as counsel for purposes of arraignment. Id. at 56, 53 S.Ct. 55; accord Cronic, 466 U.S. at 660, 104 S.Ct. 2039. On the day of the trial six days later," }, { "docid": "15216358", "title": "", "text": "in point. 466 U.S. at 660-61, 104 S.Ct. at 2047-48. In Powell, an out-of-state lawyer was appointed on the same day as the defendants’ rape trial even after the lawyer informed the court that he was neither aware of the facts nor familiar with local procedure. 287 U.S. at 55, 53 S.Ct. at 59. Powell thus presented an example where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047. Watson’s performance clearly met that low bar. In sum, the Florida Supreme Court’s refusal to determine Strickland prejudice under Cronic’s presumed prejudice standard did not constitute a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). Thus, because he cannot rely on Cronic’s presumed prejudice, Harvey must show that, but for Watson’s first-degree murder concession, there is a reasonable probability that the outcome of his trial would have been different. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69. The Florida Supreme Court found that Watson’s opening statement merely restated facts that the jury would soon hear when the State introduced Harvey’s confession into evidence. Harvey, 946 So.2d at 943-44. Therefore, according to the court, even without Watson’s opening statement, including the murder concession, the jury still would have heard that Harvey and Stiteler conferred about whether to kill the Boyds, after which Harvey shot and killed them. Id. We cannot say that the Florida Supreme Court’s Strickland finding of no prejudice constituted “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). The State’s evidence against Harvey was overwhelming and included his own confession. Under such circumstances, it would be very difficult to see how the outcome of the trial would have been different had Watson not conceded Harvey’s guilt, as charged in the indictment. See Nixon, 543 U.S. at 192, 125 S.Ct. at 563 (“[Counsel cannot be deemed ineffective for attempting to impress the jury with" }, { "docid": "16071345", "title": "", "text": "presumed. In Williams, the Supreme Court confirmed the vitality of this “per se” approach, noting that while the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel, requiring proof of deficient performance and prejudice, provides guidance for resolving virtually all ineffective assistance of counsel claims, there are “a few situations in which prejudice may be presumed.” Williams, 529 U.S. at 391, 120 S.Ct. 1495 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). We have recently applied the presumption-of-prejudice test to a claim of ineffective assistance of counsel. Olden, 224 F.3d at 568 (prejudice is presumed when counsel is absent during prosecution’s presentation of evidence that implicates defendant because such absence occurred during “critical stage” of trial). Thus, we easily reach the conclusion that it was clearly established by the Supreme Court, as of the time that Mitchell’s case was decided in state court, that the “complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice.” Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1038, 145 L.Ed.2d 985 (2000) (citing Cronic, 466 U.S. at 659, 104 S.Ct. 2039). Because there is clearly established law applicable to Mitchell’s claim, the next question we must address is whether the Michigan Supreme Court’s decision rejecting Mitchell’s ineffective assistance claim was “an unreasonable application of’ that established law 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). The Warden correctly argues that the district court failed to review the Michigan Supreme Court findings under the deferential standard of review mandated by AEDPA. The district court’s order did not determine whether the Michigan Supreme Court’s analysis was objectively unreasonable; instead, it essentially reviewed Mitchell’s claims de novo. We must now, therefore, conduct the appropriate review of the Michigan Supreme Court’s decision. D. Mitchell’s Ineffective Assistance of Counsel Claim Although the Michigan Supreme Court properly acknowledged Supreme Court precedent by noting that “[t]he right to counsel extends to representation during any ‘critical" }, { "docid": "7648770", "title": "", "text": "Ginther hearing, the case law reveals that a Michigan reviewing court will consider claims of ineffective assistance of counsel but will be forced to limit itself to examining the trial record for errors, as no other record has been developed. Thus, while Ginther and its progeny indicate that it is crucial to develop an adequate record of trial counsel’s failures if petitioner’s claim is to succeed, we believe that those Michigan courts that have rejected ineffective assistance of counsel claims have done so on the merits of the claim and not due to a procedural default. Because we conclude that there was no firmly established and regularly followed state procedural rule to bar Mitchell’s ineffective assistance claim when the Michigan Supreme Court reviewed this case, the district court did not err in considering the claim and we need not engage in a cause- and-prejudice analysis before reaching the substance of Mitchell’s claim. C. Application of AEDPA The threshold question under AEDPA is whether Mitchell seeks to apply a rule of law that was clearly established at the time his state court conviction became final. Williams, 529 U.S. at 390, 120 S.Ct. 1495. There is no doubt that the rule of law that Mitchell seeks to apply — the “per se” ineffective assistance of counsel rule — was clearly established by the Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court held that an appeals court must reverse a criminal defendant’s conviction “without any specific showing of prejudice to defendant when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039. In other words, when counsel is totally absent during a critical stage of the proceedings, prejudice must be presumed. In Williams, the Supreme Court confirmed the vitality of this “per se” approach, noting that while the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel, requiring proof of deficient" }, { "docid": "1697273", "title": "", "text": "present “the rare claim of ineffective assistance that is tantamount to a constructive denial of counsel,” id. at 277. Such a situation arises only when a lawyer “ ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ ” id. at 275 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039), and thus “might as well be absent from the proceedings,” id. at 277. Counsel’s performance here came nowhere close to this sort of deficiency. Since counsel undeniably “served as an advocate” for petitioner and “tested the [Commonwealth]’s case through the adversarial system,” petitioner “cannot show that he was constructively denied his right to counsel.” Id. Third, this case is not one where “ ‘although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial,’ ” id. at 275 (quoting Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039). At most, petitioner alleges circumstances that may have made it somewhat more difficult for counsel to prepare for trial. But “[n]ot every restriction on counsel’s time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant’s Sixth Amendment right to counsel.” Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). Consequently, a claim alleging such a restriction cannot succeed without an accompanying allegation of prejudice. See, e.g., Cronic, 466 U.S. at 649, 666 & n. 41, 104 S.Ct. 2039 (no presumption of prejudice when counsel had less than a month to prepare to defend complex mail fraud charges); Chambers v. Maroney, 399 U.S. 42, 53-54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (no presumption of prejudice when counsel appeared only a few minutes prior to trial); Glover, 262 F.3d at 271-72, 278-79 (no presumption of prejudice when counsel received defendant’s file only two days before trial). Since his circumstances do not give rise to prejudice per se, Petitioner’s failure to allege how the conditions of" }, { "docid": "13979061", "title": "", "text": "the lower court’s denial of the petition, and the United States Supreme Court denied Griffin’s petition for certiorari. On April 14, 1983, Griffin filed his petition for writ of habeas corpus in the district court. As grounds for relief, the petition alleged: ineffective assistance of trial and appellate counsel; violation of Griffin’s fourth, fifth, and fourteenth amendment rights; and denial of a full and fair hearing in the state courts on various constitutional claims. The case was referred to a United States Magistrate, who issued a report and recommendation that Griffin’s application for relief be denied. The district court granted the State’s motion for summary judgment and issued a certificate of probable cause to appeal. On appeal, Griffin presents fourteen assignments of error as previously noted, among them being that he received ineffective assistance of trial counsel; his conviction violated his fourteenth amendment right to due process of law because it was for a crime not charged in the indictment; his conviction violated his fourth and fifth amendment rights; and he was denied effective assistance of appellate counsel. Ineffective Assistance of Trial Counsel Griffin asserts that the circumstances surrounding his case justify the presumption that trial counsel was ineffective under a principle the Court recognized but refused to apply in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Court recognized that even though it is to be presumed that counsel is competent, certain circumstances may indicate a breakdown in the adversarial process which will justify a presumption of ineffectiveness without inquiry into counsel’s actual performance at trial. 466 U.S. at---, 104 S.Ct. at 2045-50. The Court stated: Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of trial. Id. 466 U.S. at---, 104 S.Ct. 2047-48, citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)." }, { "docid": "11451754", "title": "", "text": "such a case. Cronic, 466 U.S. at 660-61, 104 S.Ct. 2039. Because of the last-minute appointment of counsel for the defendants in Powell, “the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Id. at 661, 104 S.Ct. 2039. The Court noted, on the other hand, that “the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” Id. at 656-57 n. 19, 104 S.Ct. 2039. In the present case, Moss was not denied the right of counsel at a critical stage of his trial. Nor is this a situation in which surrounding circumstances prevented the possibility of his counsel effectively representing Moss’s interests. Finally, as the following discussion indicates, Moss’s counsel did not “entirely fail[ ] to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659, 104 S.Ct. 2039. Modelski’s preparation prior to trial included meeting with Moss before the preliminary examination, attending the preliminary examination, visiting Moss several times in jail, consulting with the attorneys for Thomas and Gould, visiting the scene of the shooting, and reviewing the records from the police department, which she obtained after drafting a discovery order. She also encouraged Moss to accept the guilty plea offer that the State had presented to him. During the trial, Modelski reserved her right to make an opening statement, cross-examined several witnesses, and made a closing argument. Although some of Modelski’s decisions might have been unwise, her representation did not lead to “an actual breakdown of the adversarial process during the trial of this case.” Cronic, 466 U.S. at 657-58, 104 S.Ct. 2039. Her performance is readily distinguishable from situations where ineffective assistance has been presumed. See, e.g., Rickman v. Bell, 131 F.3d 1150, 1156-60 (6th Cir.1997) (holding that Cronic applied where defense counsel “combined a total failure to actively advocate his client’s cause with repeated expressions of contempt" }, { "docid": "21783816", "title": "", "text": "itself.’ ” Id. at 656, 104 S.Ct. 2039 (quoting Sullivan, 446 U.S. at 343, 100 S.Ct. 1708). To establish ineffective assistance of counsel, a defendant must show (1) objectively deficient performance and (2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The majority readily concludes, and the state concedes, that Glover meets the first element of the Strickland test because his lawyer’s “performance was not objectively reasonable.” Ante at 275. The question is whether Glover has established prejudice, and I am convinced that he has. Prejudice occurs when the lawyer’s substandard performance “deprive[s] the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As a general rule, a defendant must show actual prejudice, but there are at least three situations when prejudice is presumed. See Cronic, 466 U.S. at 658-660, 104 S.Ct. 2039. One situation is when “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiring into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. 2039. A presumption of prejudice does not follow automatically from the “ ‘tardy appointment of counsel.’” Id. at 661, 104 S.Ct. 2039 (quoting Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)). However, when circumstances “make it unreasonable to expect that counsel could adequately prepare for trial,” a presumption of prejudice is justified. Id. at 661-62, 104 S.Ct. 2039. Specifically, prejudice may be presumed when circumstances surrounding the short time available for investigation and preparation make witnesses inaccessible to the defense. See id. That is this case. The majority rejects Glover’s claim by saying that he seeks “some broad-brush presumption of prejudice.” Ante at 279. The picture that Glover paints is not done with a broad brush. It portrays a set of circumstances that would render any lawyer — no matter how skilled — incapable of providing effective assistance. The right to the effective assistance of counsel includes the right to have" }, { "docid": "11451753", "title": "", "text": "first magnitude,” which cannot be cured even if no prejudice is shown. Id. (quoting Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), in which the defendant was denied the right of effective cross-examination). “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 659 n. 26, 104 S.Ct. 2039. Finally, there may be “some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. 2039. The Supreme Court explained in Cronic that Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), a case in which defense counsel was not appointed until the very day of trial, was such a case. Cronic, 466 U.S. at 660-61, 104 S.Ct. 2039. Because of the last-minute appointment of counsel for the defendants in Powell, “the surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Id. at 661, 104 S.Ct. 2039. The Court noted, on the other hand, that “the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” Id. at 656-57 n. 19, 104 S.Ct. 2039. In the present case, Moss was not denied the right of counsel at a critical stage of his trial. Nor is this a situation in which surrounding circumstances prevented the possibility of his counsel effectively representing Moss’s interests. Finally, as the following discussion indicates, Moss’s counsel did not “entirely fail[ ] to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659," }, { "docid": "1697272", "title": "", "text": "single fact that counsel or an expert failed to discover, let alone one capable of convincing the jury that he did not repeatedly stab a defenseless victim or that doing so was not heinous and indicative of future dangerousness. Thus, he “cannot establish an essential prerequisite for relief’ under Strickland. Hill, 400 F.3d at 325. Petitioner attempts to avoid this conclusion by invoking a narrow exception to the second Strickland prong, whereby “in certain limited contexts, ‘prejudice is presumed.’ ” Glover v. Miro, 262 F.3d 268, 275 (4th Cir.2001) (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052). The caselaw has identified three such contexts, see id., and petitioner has failed to state a claim that would qualify for per-se prejudice under any of them. First, he does not contend that there was simply “no lawyer ... present at a critical stage of the proceedings,” id. at 276 (emphasis added) (citing Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)), nor would the record support this. Second, he does not present “the rare claim of ineffective assistance that is tantamount to a constructive denial of counsel,” id. at 277. Such a situation arises only when a lawyer “ ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ ” id. at 275 (quoting Cronic, 466 U.S. at 659, 104 S.Ct. 2039), and thus “might as well be absent from the proceedings,” id. at 277. Counsel’s performance here came nowhere close to this sort of deficiency. Since counsel undeniably “served as an advocate” for petitioner and “tested the [Commonwealth]’s case through the adversarial system,” petitioner “cannot show that he was constructively denied his right to counsel.” Id. Third, this case is not one where “ ‘although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial,’ ” id. at 275 (quoting Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039). At most, petitioner alleges" }, { "docid": "7648771", "title": "", "text": "at the time his state court conviction became final. Williams, 529 U.S. at 390, 120 S.Ct. 1495. There is no doubt that the rule of law that Mitchell seeks to apply — the “per se” ineffective assistance of counsel rule — was clearly established by the Supreme Court in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court held that an appeals court must reverse a criminal defendant’s conviction “without any specific showing of prejudice to defendant when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. 2039. In other words, when counsel is totally absent during a critical stage of the proceedings, prejudice must be presumed. In Williams, the Supreme Court confirmed the vitality of this “per se” approach, noting that while the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), test for ineffective assistance of counsel, requiring proof of deficient performance and prejudice, provides guidance for resolving virtually all ineffective assistance of counsel claims, there are “a few situations in which prejudice may be presumed.” Williams, 529 U.S. at 391, 120 S.Ct. 1495 (citing Strickland, 466 U.S. at 692, 104 S.Ct. 2052). We have recently applied the presumption-of-prejudice test to a claim of ineffective assistance of counsel. Olden, 224 F.3d at 568 (prejudice is presumed when counsel is absent during prosecution’s presentation of evidence that implicates defendant because such absence occurred during “critical stage” of trial). Thus, we easily reach the conclusion that it was clearly established by the Supreme Court, as of the time that Mitchell’s case was decided in state court, that the “complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice.” Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (citing Cronic, 466 U.S. at 659, 104 S.Ct. 2039). Because there is clearly established law applicable to Mitchell’s claim, the next question we must address is whether the Michigan" }, { "docid": "21783788", "title": "", "text": "appropriate. First, prejudice is presumed when the defendant is completely denied counsel “at a critical stage of his trial.” Cronic, 466 U.S. at 659, 104 S.Ct. 2039. Second, per-se prejudice occurs if there has been a constructive denial of counsel. This happens when a lawyer “entirely fails to subject the prosecution’s case to meaningful adversarial testing,” thus making “the adversary process itself presumptively unreliable.” Id. Third, the Court identified certain instances “when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). A finding of per-se prejudice under any of these three prongs is “an extremely high showing for a criminal defendant to make.” Brown v. French, 147 F.3d 307, 313 (4th Cir.1998). Absent these narrow circumstances of presumed prejudice under Cronic, defendants must show actual prejudice under Strickland. See Strickland, 466 U.S. at 692, 104 S.Ct. 2052; Cronic, 466 U.S. at 666 and n. 41, 104 S.Ct. 2039. Actual prejudice requires the defendant to “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Federal courts entertaining collateral attacks on state convictions have only limited powers of judicial review. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Bell v. Jarvis, 236 F.3d 149, 157 (4th Cir.2000) (en banc). Under 28 U.S.C. § 2254(d)(1), this court may not grant a writ of habeas corpus when a State court resolved the merits of a claim unless the adjudication of the claim “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.” 28 U.S.C. § 2254(d)(1) (Supp." }, { "docid": "20837487", "title": "", "text": "to break new ground but instead to simply have the rule in Cronic applied to his case. And the state does note that Strickland itself cited Cronic as an example of an attorney’s constitutionally deficient performance: “In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (citing Cronic, 466 U.S. at 659, 104 S.Ct. 2039). This at least suggests that Cronic describes merely a subset within the universe of Strickland claims that includes “the most extreme instances of lawyerly incompetence.” Barrow v. Uchtman, 398 F.3d 597, 603 n. 4 (7th Cir.2005). Smith contends that requiring a petitioner to cite both cases elevates form over substance. Fortunately, we need not decide the thorny issue of whether the Cronic issue was fairly presented in this case. Whether or not Smith waived his Cronic contention, it lacks merit. And it certainly cannot meet the exacting AEDPA standard. The Supreme Court in Strickland limited the presumption of prejudice to cases involving “[a]ctual or constructive denial of the assistance of counsel altogether.” 466 U.S. at 692, 104 S.Ct. 2052. This includes, for example, “claims based on state interference with the ability of counsel to render effective assistance to the accused.” Id. at 683, 104 S.Ct. 2052. In Cronic the Court explained that presuming prejudice would be appropriate in the face of a “complete denial of counsel” or denial at a “critical stage” of the litigation. 466 U.S. at 659, 104 S.Ct. 2039. The presumption would also be triggered if counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing,” or if, due to the timing of the trial or other factors, “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is [] small.” Id. at 659-60, 104 S.Ct. 2039. In sum, the presumption is appropriate where “[p]reju-dice ... is so likely that case-by-case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692,104 S.Ct. 2052. We have observed that the “Cronic exception" }, { "docid": "21783824", "title": "", "text": "had nearly two months, not two days, to prepare the case. During that time the lawyer was able to meet with the defendant several times, employ an investigator, review the prosecutor’s files, and interview several witnesses. This level of pretrial preparation, we held, did not “justify a presumption of ineffective counsel.” Grif fin, 775 F.2d at 1280-81. In Praylow the defendant had two lawyers representing him, and he entered a guilty plea after talking with them several times. Although one of the lawyers was not appointed to represent the defendant until the day of his guilty plea, the other lawyer had been representing him on a related case for over seven months. The two lawyers worked together on the case and conducted an adequate investigation. In these circumstances, we declined to presume ineffectiveness. See Praylow, 761 F.2d at 183. In short, neither Griffin nor Praylow stands in the way of a writ in this case. I am convinced that the South Carolina Supreme Court, in reversing the grant of the writ by the state habeas court, made “a decision that was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The rule in Cronic is straightforward: circumstances giving rise to a Sixth Amendment violation are present “when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. The circumstances here prevented Askins from conducting a thorough investigation of Glover’s case, especially his alibi defense. The situation was so intolerable that no lawyer could have done the job. Askins’s performance was deficient through no fault of his own, and the circumstances impeding his ability to provide Glover effective representation trigger a presumption of prejudice. The state habeas court and the district court were therefore correct: the writ should be granted." }, { "docid": "13979062", "title": "", "text": "of appellate counsel. Ineffective Assistance of Trial Counsel Griffin asserts that the circumstances surrounding his case justify the presumption that trial counsel was ineffective under a principle the Court recognized but refused to apply in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Court recognized that even though it is to be presumed that counsel is competent, certain circumstances may indicate a breakdown in the adversarial process which will justify a presumption of ineffectiveness without inquiry into counsel’s actual performance at trial. 466 U.S. at---, 104 S.Ct. at 2045-50. The Court stated: Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of trial. Id. 466 U.S. at---, 104 S.Ct. 2047-48, citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Griffin points to several claims which, he argues, justify the presumption of ineffectiveness: minimal pre-indictment investigation by counsel; continuous presence of counsel in court on other matters in the three-day period between indictment and trial; failure of counsel to obtain a transcript of the hearing; limited time to talk with Griffin in the time period between the preliminary hearing and the morning of trial; and the inability of counsel appointed on the day before trial to present constitutional grounds for the suppression of evidence since counsel had no knowledge of the facts of Griffin’s case when he researched the legal issues. Griffin asserts that if he is correct as to these claims, the likelihood that any lawyer could have provided effective assistance is so remote that prejudice should be presumed without inquiry into counsel’s actual performance at trial. We do not think that the circumstances of the case resulted in a breakdown of the adversarial process. The district court found that despite the short time to prepare between the December 1st indictment and the December" }, { "docid": "20139323", "title": "", "text": "mischarted course off the path of legal rectitude and treat the issue as a Sixth Amendment claim. As the supreme court, in its collateral review, continued to treat the question of Hetherington’s effectiveness as a Sixth Amendment claim, the question of which amendment the trial court proceeded under on collateral review is little more than academic. All that really matters is that the court reaffirmed its previous holding that — whether under the Fifth or Sixth Amendment — Hetherington did not provide ineffective assistance. . United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the U.S. Supreme Court held that the defendant had failed to show actual ineffective assistance of counsel and that it would not presume ineffective assistance because the case did not involve \"surrounding circumstances makfing] it unlikely that the defendant could have received the effective assistance of counsel.” Id. at 666, 104 S.Ct. at 2051. The Court also noted, however, that circumstances such as \"the complete denial of counsel,” \"counsel entirely fail[ing] to subject the prosecution's case to meaningful adversarial testing,” or an extreme case in which \"although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial” could give rise to a presumption of a denial of the defendant's Sixth Amendment rights. Id. at 659-60, 104 S.Ct. at 2047. . Incidentally, in his federal habeas petition itself, Philmore appears to have conceded a failure to exhaust this claim in the state courts. Philmore responded \"No” in response to the question, \"Did you raise Ground II [the challenge to Hetherington's performance] in the Supreme Court of Florida on a direct appeal of your conviction?” See 28 U.S.C. § 2254(b)(1)(A) (\"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ... the applicant has exhausted the remedies available" } ]

[ { "docid": "1561012", "title": "", "text": "on the job. Anyone who does so and who thereby neglects his own work or interferes with the work of others will be subject to discharge.” On September 2, 1964, employees McCarty and Haley were discharged for violation of this rule. The fact that they engaged in conduct forbidden by the rule is not contested. The question is the validity of the rule. The Examiner upheld the rule and the Board reversed. A no-solicitation rule which only regulates employee activity during working hours is valid unless adopted or used for a discriminatory purpose. The Examiner found, we believe correctly, that there was no evidence of discriminatory promulgation. The Board said that “no one disputes that the notice was initially promulgated in response to union activity.” Standing alone, the fact that an organizational campaign may have begun before the rule was posted does not prove a discriminatory purpose. The rule was in effect for at least three and one-half years before any complaint was made. In effect, the Board infers from occurrences in 1964 that the Company had a bad motive in 1960. We do not deem this to be a reasonable inference. The Examiner found no discriminatory application of the rule. He did so after denying a proffer of proof by the General Counsel that the rule had been applied discriminatorily. The Board held that the offer should have been received and we agree. The Board went on to hold that discriminatory enforcement was shown by the facts that the Company had condoned solicitations to pay for flowers sent to widows of deceased employees and had on one occasion discussed with a group of employees the handling of Community Chest and Red Cross contributions through payroll deductions. In our opinion these beneficent acts fall far short of establishing forbidden discrimination. The holding of the Board that the no-solieitation rule was discriminatorily promulgated and enforced in violation of § 8(a) (1) is reversed and the case remanded for such further proceedings as are appropriate on the issue of the allegedly discriminatory promulgation and enforcement of the rule. This requires that the" } ]

[ { "docid": "22939839", "title": "", "text": "issues were decided in United Aircraft, no further litigation of these issues is permitted. Two pertinent legal issues were decided by United Aircraft. First, it was determined that since the rule permitted employees to engage in union solicitation on company property before and after work and at lunch-time, the ban on solicitation at other times did not unduly restrict the employees’ fundamental rights under § 7 of the Act. Second, it was held that, given the freedom of the employees to solicit on company property before and after work and at lunchtime, the union had the power to bargain away employees’ rights to engage in solicitation at other times. These determinations of the legal issues would normally preclude the Board’s conclusions in the present proceeding and thus bar enforcement of the Board’s present order. It is established, however, that “a judicial declaration intervening between the two proceedings may so change the legal atmosphere as to render the rule of collateral estoppel inapplicable.” Commissioner v. Sunnen, supra, 333 U.S. at 600, 68 S.Ct. at 720 (footnote omitted); accord, e.g., Restatement (Second) of Judgments § 28(2)(b). Thus, the preclusive effect vei non of United Aircraft’s determinations of the legal issues turns on the meaning of the Supreme Court’s decision in NLRB v. Magnavox Co. C. NLRB v. Magnavox Co. In Magnavox, the union challenged a company rule that prohibited employees from distributing literature anywhere on company property at any time. The no-distribution rule had been maintained for some 16 years, antedating the first collective bargaining agreement between Magna-vox and the union. The collective bargaining agreement provided that the company could “issue Rules and Regulations for the maintenance of orderly conditions,” and that such “rules [would] not be unfair or of a discriminatory nature.” The Magna-vox Co. of Tennessee, 195 N.L.R.B. 265, 269 (1972). The company agreed to provide bulletin boards for the posting of union notices; another rule, not challenged, prohibited “[soliciting of any kind on Company Property during working hours.” Id. at 268 n. 2. The Board found that the blanket no-distribution rule violated fundamental employee rights that could not be" }, { "docid": "15410494", "title": "", "text": "blood bank and the like. The first three employees discharged were given no warning whatsoever that the company intended to enforce the rule. They were simply discharged out of hand. As to the last two discharges, the employees were in flagrant disregard of the reposted rule. If they are to be saved, as the Board has saved them, the saving must rest on the proposition that the rule was posted simply to impede the organizational activity of the employees. Again the record makes out such a case. The policy of the law with regard to no-solicitation rules fully recognizes the importance of protecting the legitimate interests of employers in the areas of plant order and efficient production. Republic Aviation Corp. v. NLRB, 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed 1372; NLRB v. Avondale Mills, 5 Cir., 1957, 242 F.2d 669, aff. sub nom. NLRB v. United Steelworkers, 1958, 357 U.S. 357, 78 S.Ct. 1268, 2 L.Ed.2d 1383. Wherever no-solicitation rules have been promulgated and enforced either across the board or with minor well-defined exceptions for charitable or other purposes, the rules are upheld. But where no-solicitation rules are applied only as to union activity while other types of solicitation have gone unchallenged by the employer, the inference arises that the rules are not being used simply to serve the ends of plant order and production. The record presented to us is one of an employer permitting solicitation on working time except where union activity is concerned. The Board concluded that this would not do. The record is ample under the substantial evidence on the record considered as a whole rule to warrant the conclusion. The petition to review and set aside is denied; the petition to enforce is granted. . The notice, dated October 16, 1964, read: “All solicitations during working time which interfere with the work of any employee are prohibited. No person will be allowed to carry on union organizing activities in the plant during his working hours. Anybody who does so and thereby interferes with his own work or the work of others will be" }, { "docid": "16522764", "title": "", "text": "is that “an employer ... [that] denies a union access to its property while regularly allowing other individuals, groups, and organizations to use its premises for various activities unlawfully discriminates against the union solicitation.” The Board explained that it would not allow an employer to justify the restriction of union solicitation on the grounds that it permits only charitable solicitation. Id. The Board explained that “where other nonemployee solicitation is frequently allowed, the fact that much of that solicitation is charitable or otherwise noncontroversial does not preclude a finding of discrimination against union solicitation.” Id. The Board found that the solicitation permitted by Albertson’s exceeded the small number of isolated beneficent acts that the Board has in the past regarded as a permissible narrow exception to an employer’s general no-solicitation rule, such as the one employed by Albertson’s in the instant case. The Board explained that its position was consistent with the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), in which the Court first discussed the “discrimination exception” to the general rule that employers are not bound to permit unions on their property to solicit members. One member of the Board panel dissented. The dissenting member stated that the NLRA prohibits discrimination against union solicitation, but that an employer may allow one type of solicitation on its property while not permitting other types of solicitation. For instance, the dissenting member stated that an employer may permit solicitations by charities for cancer while denying those by organizations that combat AIDS. The dissenting member characterized the company’s policy as permitting solicitations by charitable groups well-known to the community while banning such solicitations from charitable groups that are not well known or by political groups or commercial groups selling goods and services. The dissenting member saw no problem with such a policy inasmuch as the line Albertson’s drew regarding the organizations that could and could not solicit was not an anti-union line. The dissenting member reasoned that the unions in this case were not soliciting charitable contributions, but rather were" }, { "docid": "22939849", "title": "", "text": "Cir.1981) (“Courts which have invalidated a clear contractual waiver of an employee’s individual statutory right have done so only when the waived right affects the employee’s right to exercise his basic choice of bargaining representative.” (citing Magnavox)), as those rights might be affected by a complete ban on union-related distribution or solicitation on company property. Notwithstanding the fact that the Magnavox rule at issue banned only distribution of literature and not oral solicitation, it is clear that the rule resulted in the total elimination of such distribution, and the Court framed the issue before it in terms of the unions’ power to consent to the total elimination of either distribution or solicitation. Thus the Court referred to “a ban on the distribution of union literature or the solicitation of union support,” 415 U.S. at 324, 94 S.Ct. at 1101 (emphasis added), to rules “prohibiting” on- premises solicitation outside of working hours, id. (emphasis added), and to the “banning’ of in-plant solicitation on nonworking time, id. at 325, 94 S.Ct. at 1102 (emphasis added). We see no indication that the Court intended to deal with the unions’ power to bargain with respect to mere limitations on the time and place of union solicitation, as contrasted with the complete elimination of such solicitation. Indeed, the Court ended its opinion by noting that “as respects employers, the rights of solicitation of employees by employees concerning § 7 rights are not absolute,” id. at 326, 94 S.Ct. at 1102, and stating that its Magnavox decision was not an appropriate occasion for reviewing Board determinations as to the propriety of employers’ “limiting” in-plant communication, id. at 327, 94 S.Ct. at 1103. United Aircraft did not involve a total ban on union solicitation, or even on any particular form of solicitation; it dealt merely with time and place limitations. The collective bargaining agreement and rule at issue barred union solicitation only during time for which the employee was being paid; they allowed such solicitation at all other times, i.e., before work, after work, and at lunchtime. Thus, as the respondent union in Magnavox, supporting the Board’s" }, { "docid": "3532085", "title": "", "text": "any event, it has been held that an employer may prohibit solicitation of union support during working-time without forbidding other forms of solicitation, if the rule is not discriminatorily applied by permitting other forms of solicitation. Carter Carburetor Corp. v. N. L. R. B., 140 F.2d 714, 716 (8 Cir. 1944). Next, contrary to the examiner’s reported conclusion, the Board declared that the rule here challenged was invalid because Hosiery “ * * * permitted solicitations of other kinds during work time.” The so-called “solicitations” upon which the Board principally relies were (1) the operation of a “flower fund” by the Company to provide flowers for sick or deceased employees or members of employees’ families and (2) permitting monthly purchases of the Company’s product — hosiery — by employees at a dis count. ' The record is uncontroverted that the Company handled the “flower fund” only upon the request of the employees themselves and as an accommodation to them. The hosiery sales were allowed approximately once a month, at reduced prices, and employees were not required, urged or solicited to make such purchases. These operations, characterized by the Board as “solicitations,” in reality were nothing more than fringe benefits for the employees. We think it illogical to hold that these services rendered by Hosiery are “solicitations” and evidence of discrimination on the part of Hosiery in promulgating its rule against union solicitation. See TRW, Inc. v. N. L. R. B., 393 F.2d 771, 774 (6 Cir. 1968), supra. Indeed, as counsel for Hosiery pointed out, had Hosiery discontinued such long-standing services to the employees during the union organization campaign it might well have been charged with an unfair labor practice. The Board relies upon several cases for the proposition that similar operations have been found to be solicitations in other cases. An examination of these cases reveals that they all involved situations in which the court fo'und numerous other solicitations permitted by the companies, such as sales of candy, Christmas paper, cosmetics, tack hammers, and Girl Scout cookies, as well as innumerable charitable solicitations, church fund drives, sports pools, raffles," }, { "docid": "16522765", "title": "", "text": "Court first discussed the “discrimination exception” to the general rule that employers are not bound to permit unions on their property to solicit members. One member of the Board panel dissented. The dissenting member stated that the NLRA prohibits discrimination against union solicitation, but that an employer may allow one type of solicitation on its property while not permitting other types of solicitation. For instance, the dissenting member stated that an employer may permit solicitations by charities for cancer while denying those by organizations that combat AIDS. The dissenting member characterized the company’s policy as permitting solicitations by charitable groups well-known to the community while banning such solicitations from charitable groups that are not well known or by political groups or commercial groups selling goods and services. The dissenting member saw no problem with such a policy inasmuch as the line Albertson’s drew regarding the organizations that could and could not solicit was not an anti-union line. The dissenting member reasoned that the unions in this case were not soliciting charitable contributions, but rather were at tempting, among other things, to persuade the company’s employees to “buy” its representational services, which the store’s no-solicitation policy prohibited. The dissenting member pointed out that if one of the charities that was permitted to solicit on the company’s property sought donations for a political campaign, such solicitation would be prohibited under the company’s no-solicitation policy. However, if a union sought to raise money for the American Cancer Foundation, it would be permitted to do so under the policy. The dissenting member explained that such a policy was permitted under the NLRA because it was not based on union considerations. The dissenting member further believed requiring employers to open their doors to unions whenever they chose to do so for charities would lead to employers closing their doors on charities altogether, and that the Board should encourage employers to be as generous as possible in allowing access to their premises for beneficent acts. As explained below, we believe that San-dusky and CREP control the disposition of this ease. Those cases narrowly defined the term" }, { "docid": "16522763", "title": "", "text": "solicitation helpful or advantageous to business. The Board also contends that this Court should defer to the Board’s definition of “discrimination” because by defining that term, the Board was allegedly interpreting the NLRA, a responsibility entrusted to it by Congress. While the Board recognizes that this Court has narrowly defined the term “discrimination” in Sandusky and CREP, the Board argues that they are distinguishable in that those cases involved unions urging a consumer boycott and not organizing activity. In that vein, the Board has abandoned its claims as to Local 582, which undisputedly was involved in boycotting activity, and seeks enforcement of its Order only with respect to Local 555. At the outset, we note that the Board did not rely on any distinction between organizing and boycotting activity in reaching its decision below. As explained, Local 582 clearly was engaged in boycotting activity, and the Board decided that case and the case involving Local 555 together, and applied a generally applicable rule to all such cases. According to the Board’s opinion, the general rule is that “an employer ... [that] denies a union access to its property while regularly allowing other individuals, groups, and organizations to use its premises for various activities unlawfully discriminates against the union solicitation.” The Board explained that it would not allow an employer to justify the restriction of union solicitation on the grounds that it permits only charitable solicitation. Id. The Board explained that “where other nonemployee solicitation is frequently allowed, the fact that much of that solicitation is charitable or otherwise noncontroversial does not preclude a finding of discrimination against union solicitation.” Id. The Board found that the solicitation permitted by Albertson’s exceeded the small number of isolated beneficent acts that the Board has in the past regarded as a permissible narrow exception to an employer’s general no-solicitation rule, such as the one employed by Albertson’s in the instant case. The Board explained that its position was consistent with the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956), in which the" }, { "docid": "22939827", "title": "", "text": "in United’s collective bargaining agreements for many years, 440 F.2d at 95, and that the term “working hours” had been interpreted by all concerned, including an arbitrator as early as 1958, as including all time for which employees were paid, id. at 95-96. We concluded that “the testimony at trial, arbitration decisions, and past practice of the parties have eliminated any ambiguity that might otherwise exist” in the phrase “working hours,” id. at 96, and that United and the union had consistently interpreted working hours to include rest periods and exclude lunch hours, id. at 95. Accordingly, the barring of solicitation during working hours, as so interpreted, neither deprived employees of rights that were fundamental under § 7 of the Act, nor implicated public policy concerns that were overriding, because the employees remained “free to solicit on company property before and after work and during the lunch hour.” Id. at 96 (footnote omitted). In light of that freedom, we concluded that it was permissible for the union to agree to the limited no-solicitation provision in the collective bargaining agreement: We see no reason to invalidate the clear agreement of the parties.... [TJhere are 25,000 employees and over 500 stewards in the plants involved. The company probably considered the no-solicitation ban to be an important bargaining objective, and the agreement should not lightly be overturned. ... As stated earlier, we do not think the ban on solicitation during working hours unduly restricts the unions’ access to its members, and the isolated instances of permitted solicitation — charities and gifts — [are] not the “discrimination” with which the cases cited in the unions’ brief are concerned. We therefore conclude that the Board properly found that company Rule 5 and the contract can be applied to prohibit solicitation for the union during working hours, whether or not the employee is working or resting. Id. at 96-97. We found misplaced the union’s reliance on cases such as International Association of Machinists, District 9 v. NLRB, 415 F.2d 113 (8th Cir.1969) (“IAM, District 9”), and NLRB v. Mid-States Metal Products, 403 F.2d 702 (5th Cir.1968)," }, { "docid": "22939825", "title": "", "text": "found that United’s discipline of the three union stewards had been unlawful because they had not violated the company’s rule; but he declined to rule that the limited no-solicitation rule and contract provision had been “coercively and excessively enforc[ed].” The trial examiner found that all parties understood the concept of “working time” to include periods during which employees were not engaged in actual work but for which they were paid, id. at 291, and that “the Union and the Respondent ha[d] agreed to a contract provision barring solicitation of union membership or conducting union business on working time,” id. at 290. He concluded that there was no undue restriction of fundamental employee rights: [T]he concept that “working time” is the equivalent of “paid time” appears to have been established as the “common law” of the shop, both by the Respondent’s action and by arbitration decisions. Despite the long-continuing practice in the Respondent’s plants of tolerating or permitting nonunion-oriented solicitations during working time, the parties have several times executed contracts barring solicitation of union membership during working time. I do not perceive that this concession or waiver constitutes an “interference with the employees’ statutory rights . .. so great as to override any legitimate reasons for upholding the waiver, or would unduly hamper the employees in exercising their basic rights under the Act.” [Citation omitted.] The Union has agreed that union solicitation is to be treated differently from other types of solicitations. I cannot say, in the circumstances of this case, that it lacks capacity to make such an agreement. As to the contention that the no-solicitation rule and contract provision were “coercively and excessively” enforced, I am persuaded that the General Counsel has not established this to be the fact. Id. at 291. The Board adopted the trial examiner’s decision in its entirety. Id. at 278. On the union’s petition for review, this Court upheld the Board’s determination that the limited no-solicitation rule and contract provision did not violate employees’ § 7 rights. United Aircraft, supra. We noted that the contractual prohibition of union solicitation during working hours had appeared" }, { "docid": "16522792", "title": "", "text": "rights granted by the CBA. Rather, on appeal, the Board contends that Albertson's should have permitted Local 555 access to its stores, despite Albertson's no-solicitation policy, because Al-bertson’s allowed such access to charities. . In addition to the parties, several amici also have submitted briefs in this appeal. The amici are the Salvation Army; Bi-Mart, a local retailer; and the Campfire Boys and Girls. While the Board majority stated that diere is no evidence that employers had closed their doors on charitable solicitations, several of the amici contend on appeal that this situation has occurred. . The Board has held that the discrimination exception generally is subject to two exceptions of its own. An employer does not discriminate (1) if the employer allows a few isolated instances of charitable solicitation (“beneficent acts exception”); or (2) if the solicitations approved by the employer relate to the employer's business functions and purposes. See Lucile Salter Packard Children's Hosp. at Stanford v. NLRB, 97 F.3d 583, 587 (D.C.Cir.1996) (citation omitted). In the instant case, the Board held that the frequency with which Albertson’s allowed charities to solicit donations on its stores’ premises exceeded that permitted under the beneficent-acts exception. Albertson’s does not contest this finding on appeal. However, Albertson's does contend that the Board offers no reasonable justification for its beneficent-acts exception and as to why employers' property rights should be diminished as a result of their generosity to charities. As for the second exception, Albertson's does not contend that the charitable solicitations it allowed on its premises relate to its business as a retail grocer. . The Court in Lechmere focused only on the first exception to the \"general rule\" that an employer \"can bar nonemployee union organizers from his property,” because in that case, it was undisputed that the employer had not permitted any other group to distribute literature on its property. Lechmere, 502 U.S. at 530 n. 1, 112 S.Ct. 841. . The parties present numerous arguments pertaining to whether unions and charities are comparable for purposes of a discrimination analysis. The amici also have submitted briefs primarily addressing this" }, { "docid": "5551009", "title": "", "text": "on April 28, 1960. Of the 2,894 ballots cast by the employees 891 were for Union representation and 1,959 were against. The remaining ballots were either challenged or void. The within unions, as joint petitioners, filed with the Board’s Regional Director objections to conduct on the part of the Company allegedly affecting the results of the election. The Board directed a hearing as to only one of the objections. This objection, in substance, charged that an unfair labor practice was committed when the Company’s representatives addressed employees on company premises and on company time, while enforcing a broad, privileged rule against solicitation and thereafter refusing the Union’s request for opportunity to address the employees under similar conditions; that is, on company premises and on company time. The Board’s Trial Examiner who conducted the hearing, recommended in his intermediate report that the complaint against the Company be dismissed. The Board, with two members dissenting, rejected the Examiner’s recommendations. The Board majority found that the above conduct of the Company constituted a violation of Section 8(a) (1) of the Act, ordered that the Company cease and desist from such conduct during organizational campaigns, ordered the posting of the usual notice with guarantees of compliance, and set aside the election. The Board adopted the Trial Examiner’s findings of fact insofar as they were consistent with the Board’s decision and order. The facts upon which the Board apparently based its decision and order are not in dispute and reflect the following: The two unions here involved (hereinafter the Union) began organization efforts among the Company’s employees in 1959. The Company during the campaign period had. in force a broad no-solicitation rule. This rule forbade non-employees to solicit for any purpose on the Company’s property. It also prohibited solicitation by employees .during the working time of either the employee soliciting or the employee being solicited. Further, the rule prohibited solicitation by any employee during store opening hours on any portion of the Company’s premises normally visited by the public or where noise or talking was not allowed. The Company’s representatives, on several occasions prior to" }, { "docid": "5800713", "title": "", "text": "anti-union sentiments of the employees involved. The NLRB dismissed the union’s charge that the company’s action constituted discriminatory enforcement of its “no distribution” rule. In the other case a company discharged three employees for violation of its “no solicitation” rule. During this same period, supervisory personnel solicited employees to withdraw their membership cards from the union. The NLRB found that the employees’ discharge constituted unlawful discrimination. In each case the NLRB was “reversed” by a circuit court of appeals. Id. at 359-61, 78 S.Ct. 1268. The “very narrow and almost abstract question” which the Court deemed before it in Steelworkers was whether “when the employer himself engages in anti-union solicitation [or distribution] that if engaged in by employees would constitute a violation of the rule . . .his enforcement of an otherwise valid no-solicitation [or -distribution] rule against the employees is itself an unfair labor practice.” Id. at 362, 78 S.Ct. at 1271. The Court declined to rule that “the coincidence of these circumstances necessarily violates the Act,” stating that “such a rule of law would show indifference to the responsibilities imposed by the Act primarily on the Board to appraise .carefully the interests of both sides of any labor-management controversy in the diverse circumstances of particular cases and in light of the Board’s special understanding of these industrial situations.” Id. at 362-63, 78 S.Ct. at 1271. The Company acknowledges that under Steelworkers a rule against employee distribution is discriminatorily applied when it is enforced against some employees but not others. However, it argues that when such a rule is consistently enforced against all employees, there is no unlawful discrimination even if the employer engages in distribution which is prohibited to the employees. Although we do not read Steelworkers exactly this way, we are satisfied that even utilizing the Company’s interpretation of that case, the NLRB’s order is entitled to enforcement. Without expressly so stating, Steelworkers equated distribution or solicitation by the company with distribution or solicitation by supervisory personnel. See 357 U.S. at 360, 78 S.Ct. 1268. Thus, evidence that supervisory personnel distributed anti-Union or other material in contravention" }, { "docid": "3532084", "title": "", "text": "the receipt of the union’s letter [announcing the commencement of the Union’s organizing campaign] would be premature.” Each of these cases involved a situation which would have made the company’s no-solicitation rule more suspect than in the instant case; in fact, in Serv-Air the company had been found guilty of interrogations, threats, discriminatory discharges, and a refusal to bargain. We hold, in accord with the view announced by the Sixth and Tenth Circuits, that timing alone will not invalidate an otherwise valid no-solicitation rule. The Board found that the fact that the rule prohibited only union activities also rebutted the presumed validity of the rule. This finding is inconsistent with the Board’s established policy (as stated in the Board’s decision in this case) that a no-solicitation rule prohibiting union activities which is limited to employees' work time is presumed valid. Furthermore, there is testimony in the record that Hosiery already had a general no-solicitation rule in effect, although unfortunately this matter was not seriously pursued by either party as an issue in the case. In any event, it has been held that an employer may prohibit solicitation of union support during working-time without forbidding other forms of solicitation, if the rule is not discriminatorily applied by permitting other forms of solicitation. Carter Carburetor Corp. v. N. L. R. B., 140 F.2d 714, 716 (8 Cir. 1944). Next, contrary to the examiner’s reported conclusion, the Board declared that the rule here challenged was invalid because Hosiery “ * * * permitted solicitations of other kinds during work time.” The so-called “solicitations” upon which the Board principally relies were (1) the operation of a “flower fund” by the Company to provide flowers for sick or deceased employees or members of employees’ families and (2) permitting monthly purchases of the Company’s product — hosiery — by employees at a dis count. ' The record is uncontroverted that the Company handled the “flower fund” only upon the request of the employees themselves and as an accommodation to them. The hosiery sales were allowed approximately once a month, at reduced prices, and employees were not" }, { "docid": "3532081", "title": "", "text": "Board’s action was unreasonable, arbitrary, and unsupported by substantial evidence. The Board has held, with subsequent court approval, that a rule limiting union activity on company premises to nonworking .time is presumed valid in the absence of evidence that it was adopted for a discriminatory purpose. Republic Aviation Corp. v. N. L. R. B., 324 U.S. 793, 803 n. 10, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), quoting from Matter of Peyton Packing Co., 49 NLRB 828, 843-844 (1943); TRW, Inc. v. N. L. R. B., 393 F.2d 771, 772 (6 Cir. 1968). The Board restated this principle in its decision in the instant case but determined that the presumed validity of the rule was rebutted by three factors: (1) the rule was not promulgated until the Union had begun to organize; (2) the rule on its face prohibited only union organizing activities; and (3) the Company permitted “solicitations” of other kinds during work time. The Board’s argument that promulgation of the no-solicitation rule after the Union had begun to organize invalidated the rule is unconvincing. Cases cited by the Board to support its position do not squarely decide that the timing of the notice alone could be a ground for invalidating an otherwise valid no-solicitation rule; instead those cases involved either no-solicitation rules which purported to prohibit solicitation during nonworking as well as working time or rules which were promulgated in a context of clear union hostility and where the companies were guilty of threatening or coercing employees, conducting other solicitations during working time, discriminatorily discharging employees, or committing other unfair labor practices. In the instant case the no-solicitation notice was applicable only during working time and it is uncontroverted that there were no allegations in the complaint or charges that the Company in any way violated the Act through any threats or promises to employees during the union organizing campaign, that five other unfair labor practice cases filed against Hosiery during this same period were dismissed by the Board or withdrawn by the Union for want of supporting evidence, and that there was no antiunion activity of any" }, { "docid": "22939848", "title": "", "text": "is to be allowed to oppose the incumbent, it must be allowed in favor of the incumbent as well: [A] limitation of the right of in-plant distribution of literature to employees opposing the union does not give a fair balance to § 7 rights, as the Board ruled in the present case. For employees supporting the union have as secure § 7 rights as those in opposition. 415 U.S. at 326, 94 S.Ct. at 1102. Accordingly, the Court upheld the Board’s ruling that Magnavox’s no-distribution rule was not enforceable, regardless of whether the distributions were on behalf of the incumbent or on behalf of a rival. We do not view the Supreme Court’s ruling in Magnavox as altering the principles set forth in United Aircraft. Rather, it appears to us that the focus of the Court’s decision was the interplay between two factors — neither of which was at issue in United Aircraft — to wit, the employees’ rights to choose their bargaining representative, see Prudential Insurance Co. v. NLRB, 661 F.2d 398, 400-01 (5th Cir.1981) (“Courts which have invalidated a clear contractual waiver of an employee’s individual statutory right have done so only when the waived right affects the employee’s right to exercise his basic choice of bargaining representative.” (citing Magnavox)), as those rights might be affected by a complete ban on union-related distribution or solicitation on company property. Notwithstanding the fact that the Magnavox rule at issue banned only distribution of literature and not oral solicitation, it is clear that the rule resulted in the total elimination of such distribution, and the Court framed the issue before it in terms of the unions’ power to consent to the total elimination of either distribution or solicitation. Thus the Court referred to “a ban on the distribution of union literature or the solicitation of union support,” 415 U.S. at 324, 94 S.Ct. at 1101 (emphasis added), to rules “prohibiting” on- premises solicitation outside of working hours, id. (emphasis added), and to the “banning’ of in-plant solicitation on nonworking time, id. at 325, 94 S.Ct. at 1102 (emphasis added). We see" }, { "docid": "20778360", "title": "", "text": "Kaschner (May 7, 1998) (emphasis added). Kaschner responded with his own letter the following day, in which he agreed with Richardson’s description. He added only that “[t]he point again of the whole meeting was if an individual is not interested in talking with you about union activities, you should respect their wishes and avoid such discussions.” Letter from Rod Kaschner to Karen Richardson (May 8, 1998). The Union filed an unfair labor practice charge with the Board alleging that East Tawas management had discriminatorily applied the plant’s worktime no-solicitation policy to union solicitations in violation of Section 8(a)(1) of the NLRA. Relying on the above letters as well as testimony from Richardson that she suffered no punishment and had resumed union solicitation on the floor after a mere seven days, the ALJ found that “the Act was [not] violated because management was essentially telling Richardson not to bother her fellow employees ... and I see at most a de minimus or insignificant infringement on Karen Richardson’s Section 7 rights.” Board Decision, at 5. The Board disagreed. The Board acknowledged that ITT’s no-solicitation rule was valid on its face, inasmuch as it prohibited all solicitations of any kind by any employee during work-time. Id. at 1 (quoting ITTA NortheRN Plakts Fluid Handling Employee Handbook 31). In practice, however, the Board found that East Tawas management did not enforce the rule, letting employees and managers talk about a variety of subjects and engage in a number of solicitation activities at their work stations. According to the Board, Kaschner’s and Binder’s May 7 admonition “not to engage in any discussion of the Union with any employee on the production floor” constituted impermissible disparate treatment. Board Decision, at 2. The Board rejected the suggestion that the violation was somehow de minimus and ordered management to post notice that it would cease disparate enforcement of the neutral no solicitation policy. Id. This petition for review of both § 8(a)(1) violations followed. II. Analysis Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations.” 29 U.S.C. § 157" }, { "docid": "3532086", "title": "", "text": "required, urged or solicited to make such purchases. These operations, characterized by the Board as “solicitations,” in reality were nothing more than fringe benefits for the employees. We think it illogical to hold that these services rendered by Hosiery are “solicitations” and evidence of discrimination on the part of Hosiery in promulgating its rule against union solicitation. See TRW, Inc. v. N. L. R. B., 393 F.2d 771, 774 (6 Cir. 1968), supra. Indeed, as counsel for Hosiery pointed out, had Hosiery discontinued such long-standing services to the employees during the union organization campaign it might well have been charged with an unfair labor practice. The Board relies upon several cases for the proposition that similar operations have been found to be solicitations in other cases. An examination of these cases reveals that they all involved situations in which the court fo'und numerous other solicitations permitted by the companies, such as sales of candy, Christmas paper, cosmetics, tack hammers, and Girl Scout cookies, as well as innumerable charitable solicitations, church fund drives, sports pools, raffles, etc. Most of these cases also involved situations where the companies attempted to prohibit union solicitation while at the same time permitting antiunion solicitation, coercion and threatening of employees, and other affirmative acts demonstrating a discriminatory purpose in promulgating the no-solicitation rules. In the instant case, the services provided the employees were for their benefit. It is undisputed that Hosiery permitted no antiunion solicitation and that it was not guilty of any other unfair labor practices. Thus, the Board’s conclusions that the hosiery sales and “flower fund” operation were “solicitations” cannot be justified on this record. We hold that, under the facts and circumstances here, the rule prohibiting solicitation of union support was valid. The clear and undisputed violation of the valid no-solicitation rule was sufficient cause for discharge. Enforcement of the Board’s order will be denied. . 175 NLRB No. 31. . 29 U.S.C. § 158(a) (1). . 29 U.S.C. § 158(a) (3). . 5 U.S.C. § 706 and 29 U.S.C. § 160(e)." }, { "docid": "22939828", "title": "", "text": "the collective bargaining agreement: We see no reason to invalidate the clear agreement of the parties.... [TJhere are 25,000 employees and over 500 stewards in the plants involved. The company probably considered the no-solicitation ban to be an important bargaining objective, and the agreement should not lightly be overturned. ... As stated earlier, we do not think the ban on solicitation during working hours unduly restricts the unions’ access to its members, and the isolated instances of permitted solicitation — charities and gifts — [are] not the “discrimination” with which the cases cited in the unions’ brief are concerned. We therefore conclude that the Board properly found that company Rule 5 and the contract can be applied to prohibit solicitation for the union during working hours, whether or not the employee is working or resting. Id. at 96-97. We found misplaced the union’s reliance on cases such as International Association of Machinists, District 9 v. NLRB, 415 F.2d 113 (8th Cir.1969) (“IAM, District 9”), and NLRB v. Mid-States Metal Products, 403 F.2d 702 (5th Cir.1968), which had invalidated more restrictive rules, since those cases were concerned with “broad bans on solicitation or distribution anywhere in the plant,” 440 F.2d at 97 n. 9, and with “the effect of those agreements on the workers’ rights to change their bargaining agent,” id. In United Aircraft, we recognized that “we [were] not dealing with agreements prohibiting all solicitation on company premises, and no claim [was] made that a rival union [was] being favored.” Id. In short, this Court upheld the determination that the limited no-solicitation rule and contract provision at issue in United Aircraft did not seriously dilute employees’ § 7 rights. C. Events Leading to the Present Petition for Enforcement The present proceeding arose out of United’s interrogation and threatened discipline of two employees at the Hamilton Standard plant at Windsor Locks in 1979. Since at least 1964, Hamilton Standard’s collective bargaining agreements with Lodge 743 of District 91 have included in Article IV a limited no-solicitation clause identical to that at issue in United Aircraft. Since at least 1964, Hamilton Standard" }, { "docid": "13169840", "title": "", "text": "the testimony of the employer’s representatives, Harvey and Ruhl, indicated (and the ALJ found) that the rule here was enforced against these union organizers only because they solicited for union membership. According to Harvey, he approached the table where the union organizers were seated because he “assumed they were there for union solicitation”; but he further testified that he had never approached any other group in the Buffeteria in a similar attempt to enforce the no-solicitation rule. Although Montgomery Ward officials claimed that the purpose of the no-solicitation rule was to prevent customer disruption and interference, both Harvey’s and Ruhl’s testimony indicates that they enforced the rule on December 2 not to halt any imminent threat to customer convenience but only because, as Harvey stated, “soliciting for union membership was contrary to company policy.” Cf. Marshall Field & Co. v. NLRB, 200 F.2d 375, 382 (7th Cir.1952) (approving employer’s banning of solicitors from selling areas when they acted in “loud and rowdy” manner). Moreover, there was other evidence which demonstrates that Montgomery Ward disparately enforced this rule against the Union. Although the no-solicitation rule was ostensibly in effect on December 2, 1977, the ALJ found that Montgomery Ward did not post the rule until several days after the incident in the Buffeteria. This failure to post the rule suggests that Montgomery Ward’s purpose was to interfere with organizational activity. See NLRB v. Montgomery Ward & Co., 554 F.2d 996, 1000 (10th Cir. 1977). There is further evidence of discrimination in the testimony of Montgomery Ward officials who, in the words of the AU, indicated that when enforcing the rule in the Buffeteria, “the scope of the ban on solicitation of employees depends partly on the kind of organization being solicited for.” 256 N.L.R.B. at 17 (ALJ’s opinion). For example, Harvey testified that he was unsure whether he would prohibit solicitation in the Buffeteria on behalf of the Girl Scouts or the American Bar Association, but on December 2 he demonstrated no hesitancy when union solicitation was involved. Moreover, Montgomery Ward actually tolerated solicitation in violation of the rule, as exemplified" }, { "docid": "10736516", "title": "", "text": "on union solicitation. See Serv-Air, Inc. v. N. L. R. B., 395 F.2d 557, 560 (10th Cir. 1968). Although this litigation reveals instances where the company used the no-solicitation ban as a pretext for discouraging union activities, we must remember, as United Aircraft’s reply brief points out, that there are 25,000 employees and over 500 stewards in the plants involved. The company probably considered the no-solicitation ban to be an important bargaining objective, and the agreement should not lightly be overturned. For the same reasons, we see no cause to nullify the company’s Rule 5 barring “gambling, taking orders, selling tickets, soliciting money or any other type of solicitation.” Rule 5, like the collective bargaining provision, was adopted many years before the present dispute arose. There is thus no evidence that the rule was adopted for the purpose of defeating union organization. Compare William H. Block Co., 150 N.L.R.B. 341 (1964). Cases brought to our attention by the unions’ brief do not establish its argument that an overriding public interest is involved which weighs against finding a waiver of solicitation rights. As stated earlier, we do not think the ban on solicitation during working hours unduly restricts the unions’ access to its members, and the isolated instances of permitted solicitation —charities and gifts — is not the “discrimination” with which the eases cited in the unions’ brief are concerned. We therefore conclude that the Board properly found that company Rule 5 and the contract can be applied to prohibit solicitation for the union during working hours, whether or not the employee is working or resting. We reject the unions’ argument that the Board reached inconsistent results in the two eases. Trial Examiner Weil decided that United Aircraft could not forbid solicitation during paid time when the employees were not working, for example during rest periods. Trial Examiner Peterson reached the opposite conclusion, i. e., that the company could prohibit solicitation during all paid time. The Board affirmed Examiner Peterson in all respects. But it deleted that portion of Examiner Weil’s proposed order reflecting his conclusion that union solicitation during nonwork" } ]

[ { "docid": "18854872", "title": "", "text": "Dallinger, Judge: This is a suit against the United States, arising at the port of New York, brought to recover certain customs duties alleged to have been improperly exacted on a particular importation of dog chains or dog leashes. Duty was levied thereon at the rate of 45 per centum ad valorem under paragraph 397 of the Tariff Act of 1930 as manufactures of metal not specially provided for. It is claimed that said articles are properly dutiable under the provision in paragraph 329 of said act for chains of all kinds made of iron or steel, at the appropriate rate depending upon the diameter of the chain. At the first hearing, held at New York on November 10, 1941, a sample of the imported merchandise was admitted in evidence as plaintiff’s exhibit 1. Also, it was stipulated by and between counsel for the respective parties in open court that the articles represented by said exhibit 1 were composed in chief value of chain. At the request of counsel for the plaintiff said exhibit 1 was sent to the Government chemist at the port of New York to determine the diameter measurement of the chain. The case was then continued to the December, 1941, term. At the second hearing, held at New York on December 8, 1941, the report of the chief chemist at the port of New York was admitted in evidence as plaintiff’s .exhibit 2, and the case was submitted by both sides. The said report reads: “The diameter of the wire composing the links of the main portion of the chain is .076 inch.” Counsel for the Government in his brief filed herein describes the merchandise as consisting of “certain dog chains or dog leashes, composed of links of iron or steel, with a swivel and snap at one end and a swivel and leather loop at the other.” Upon this record counsel for the plaintiff in their brief filed herein contend that the articles in question are properly dutiable at the rate of 4 cents per pound under said paragraph 329 since they are composed of" } ]

[ { "docid": "16672848", "title": "", "text": "Rao, Judge: The collector of customs at the port of New York invoked the similitude provisions of paragraph 1559(a) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1954, to classify an importation of polyvinyl chloride film, invoiced as Genotherm UG, of certain specifications, as manufactures of cotton, not specially provided for, and, accordingly, to assess duty thereon at the rate of 20 per centum ad valorem, pursuant to the provisions of paragraph 923 of the Tariff Act of 1930, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by T.D. 53877. While plaintiff assigns various reasons for protesting the action taken by the collector, the claim finally relied upon is that said merchandise is dutiable by similitude to crepe paper, at the rate of 2.5 cents per pound and 6% per centum ad valorem, as provided in paragraph 1404 of said tariff act, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108. Since plaintiff’s alternative claims have not been vigorously pressed, they are hereby overruled. The portions of the Tariff Act of 1930, as modified and amended, which are herein pertinent, provide as follows: Paragraph 1559(a), as amended, supra: Each and every imported article, not enumerated in this Act, which is similar in the use to which it may be applied to any article enumerated in this Act as chargeable with duty, shall be subject to the same rate of duty as the enumerated article which it most resembles in the particular before mentioned; and if any nonenumerated article equally resembles in that particular two or more enumerated articles on which different rates of duty are chargeable, it shall be subject to the rate of duty applicable to that one of such two or more articles which it most resembles in respect of the materials of which it is composed. Paragraph 923, as modified, supra : All manufacturers, wholly or in chief value of cotton, not specially provided" }, { "docid": "23258838", "title": "", "text": "Lawbence, Judge: The question for our determination here is whether an importation invoiced as “Printing Plates (Electro Shells), for ‘O. S. A. Craig-Shakespeare’ ” was properly classified by the collector of customs under the provision in paragraph 397, Tariff Act of 1930, for ■— Articles or wares not specially provided for * * * if composed wholly or in chief value of iron, * * * copper, * * * or other metal, but not plated with platinum, gold, or silver, or colored with gold lacquer, whether partly or wholly manufactured, 45 per centum ad valorem. Plaintiff makes the following claims in its protest: We claim that said printing plates (electro shells) are plates engraved or otherwise prepared for printing, and therefore are properly dutiable at 25 % under par. 341, Tariff Act of 1930, or if not so dutiable then we claim they are properly dutiable at 25% under par. 372 of said act as parts of printing machines. Paragraph 341 invoked by plaintiff is here set forth in full, the more pertinent language being italicized: Par. 341. Steel plates, stereotype plates, electrotype plates, half-tone plates, photogravure plates, photo-engraved plates, and plates of other materials, engraved or otherwise prepared for printing, and plates of iron or steel engraved or fashioned for use in the production of designs, patterns, or impressions on glass in the process of manufacturing plate or other glass, 25 per centum ad valorem; lithographic plates of stone or other material engraved, drawn, or prepared, 25 per centum ad valorem. Paragraph 372 also relied upon by plaintiff reads, so far as here material, as follows: Par. 372. * * * printing machinery (except for textiles), '* * * 25 per centum ad valorem; * * * Provided, That parts, not specially provided for, wholly or in chief value of metal or porcelain, of any of the foregoing, shall be dutiable at the same rate of duty as the articles of which they are parts; * * *. There is no controversy with regard to the copper tax of 3 cents per pound levied under the provisions of" }, { "docid": "6644805", "title": "", "text": "Landis, Judge: The items of merchandise involved under the two protests consolidated for trial herein are shelf brackets which were classified by the collector of customs as manufactures of metal, not specially provided for, under paragraph 397 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 397), as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and assessed with duty at the rate of 20 per centum ad valorem on the merchandise imported after June 30, 1957, and 19 per centum ad valorem on the merchandise imported after June 30, 1958. The importer claims that the merchandise is more specifically provided for under paragraph 312 of the same act (19 U.S.C. § 1001, par. 312), as angles or other structural shapes of iron or steel, and that it is properly -dutiable thereunder at the rates, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, of 7% per centum ad valorem if advanced beyond hammering, rolling, or casting, or, alternatively, at 0.1^ per pound if not so advanced. The plaintiff contends further that the instant record establishes that the imported shelf brackets were made by hammering, rolling, or casting, within the purview of paragraph 312, infra. Paragraph 397 of the Tariff Act of 1930, as modified by T.D. 54108: Articles or wares not specially provided for, whether partly or wholly manufactured: Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other, composed wholly or in chief value of iron, steel, brass * * *_20% ad val. [effective 6/30/57] 19% ad val. [effective 6/30/58] Paragraph 312 of the Tariff Act of 1930, as modified by T.D. 52739: Beams, girders, joists, angles, channels, car-truck channels, tees, columns and posts, or parts or sections of columns and posts, and deck and bulb beams, together with all other structural shapes of iron or" }, { "docid": "8586426", "title": "", "text": "Bao, Chief Judge: The protest before the court is limited to the last item of merchandise appearing on the commercial invoice accompanying the entry, described as “10,000 pieces. 1\" x 8/ie\" Connecting Links, Bulk pack in plain white box.” At the time of its importation through the port of Philadelphia, the collector of customs classified said merchandise as parts of bicycles in paragraph 371 of the Tariff Act of 1930, and assessed duty thereon at the rate of 30 per centum ad valorem. Whereas plaintiff in its brief contends, alternatively, that the imported articles should properly have been classified within the chain provisions of paragraph 329 of said act, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877, and duty imposed thereon at the rate of I214 per centum ad valorem, or as articles or wares, not specially provided for, composed wholly or in chief value of base metal, in paragraph 397 of said tariff act, as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and subjected to duty at the rate of 19 per centum ad valorem, reliance has been placed on the former of said claims. We set forth here the provisions of paragraph 329 of the tariff act, as modified by the Japanese protocol, supra— Chains of iron or steel, used for the transmission of power, of not more than 2-inch pitch and containing more than three parts per pitch, and parts thereof, finished or unfinished, valued per pound— Under 40 cents_ * * * 40 cents or more_12%% ad val. All other chains used for the transmission of power, and parts thereof_ 12%% ad val. When this case was called for hearing, plaintiff presented the testimony of three witnesses, and there were received in evidence two exhibits representative of the connecting links in issue. From the testimony of record presented by witnesses with 20, 22, and 35 years’ experience in the" }, { "docid": "18700179", "title": "", "text": "Rao, Chief Judge: These consolidated protests concern the proper classification of small, bar shaped pieces of indium antimonide, imported from Canada. On the invoices covered by the protests, the importations are listed as “1 piece Grade 85S indium antimonide,” “1 piece doped N, SXL indium antimonide,” “1 piece doped P, SXL indium antimonide,” “1 piece Grade 24 indium antimonide.” The collector classified the merchandise as articles, not specially provided for, composed wholly or in chief value of other metal under paragraph 397 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, and, accordingly, assessed duty thereon at the rate of 22% per centum ad valorem. Plaintiff claims that these bars are classifiable under paragraph 353 of the Tariff Act of 1930, as modified by said general agreement, as either articles, finished or unfinished, suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, or as finished or unfinished parts of such articles and, hence, dutiable at the rate of 15 per centum ad valorem. The relevant statutory provisions read as follows: Paragraph 397, as modified, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other * * *_22% ad val. Paragraph 353, as modified, supra: Articles suitable for producing, rectifying, modifying, controlling, or distributing electrical energy, * * * finished or unfinished, wholly or in chief value of metal, and not specially provided for: Other articles * * *_ 15% ad val. Parts, finished or unfinished, wholly or in chief value of metal, not specially provided for, of articles provided for in any item 353 of this Part- The same rate of duty as the articles of which they are are parts. At the trial of this case, one witness testified on behalf of the plaintiff. He was Mr. P. I. Blake, superintendent of the" }, { "docid": "22210699", "title": "", "text": "Lawrence, Judge: The merchandise under consideration here consists of hinges, imported with screws, in carboard boxes. The collector of customs, treating the merchandise as entireties, classified it as articles in chief value of base metal and assessed duty thereon at the rate of 22per centum ad valorem, in accordance with the terms of paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802). Plaintiff claims by its protest that the screws should be separately classified pursuant to the eo nomine provision therefor in paragraph 338 of said act (19 U. S. C. § 1001, par. 338), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade (86 Treas. Dec. 121, T. D. 52739), and subjected to duty at the rate of 12% per centum ad valorem, leaving only the hinges to be classified in said paragraph 397. In other words, the claim for a reduction in duty is limited to the screws. The competing provisions of the statutes, so far as pertinent here, read as follows: Paragraph 397 of the Tariff Act of 1930, as modified, sufra: Articles or wares not specially provided for, wb.eth.er partly or wholly manufactured: % :fi * % :j; % Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: Other (except slide fasteners and parts thereof)_22%% ad val. Paragraph 338 of said act, as modified, supra: Screws, commonly called wood screws, of iron or steel_ 12%% ad val. At the trial, the case was submitted upon an oral stipulation in which the parties agreed as follows: 1. That the merchandise under protest consists of screws packed with hinges in cardboard boxes, 2 hinges and 12 screws to a box, as represented by the sample which I now file with the court, and which may, with the consent of the" }, { "docid": "3720288", "title": "", "text": "Lawkence, Judge: Certain imported merchandise described in the record as \"Wardrobe Locks” was classified by the collector of customs as cabinet locks pursuant to the terms of paragraph 384 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 384), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, and duty was assessed thereon at the rate of 10 per centum ad valorem plus 75 cents per dozen. The protest of plaintiff, as amended, claims alternatively that the merchandise, if classifiable in said paragraph 384, is properly dutiable at 10 per centum ad valorem plus 35 cents a dozen, or 10 per centum ad valorem plus 50 cents a dozen, or should be classified in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said trade agreement, and dutiable at 22% per centum ad valorem. The provisions of the statutes above referred to are here set forth. Paragraph 384, as modified, supra: Cabinet locks, not of pin tumbler or cylinder construction: Not over one and one-half inches in width_35(5 per doz. and 10% ad val. Over one and one-half and not over two and one-half inches in width_500 per doz. and 10% ad val. Over two and one-half inches in width_ 750 per doz. and 10% ad val. Paragraph 397, as modified, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: * * * * * * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or. other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver, or colored with gold lacquer: * * * * * * * Other (except slide fasteners and parts thereof)_22)4% ad val. As stated in the brief of plaintiff— The chief claim herein is that the merchandise is not in fact a cabinet lock but is in fact a wardrobe lock, thus taking it out of the provisions of Paragraph 384 and bringing it into the provisions of" }, { "docid": "13657806", "title": "", "text": "Oliver, Chief Judge: The protests, enumerated in schedule “A,” hereto attached and made a part hereof, relate to certain articles, described on the invoices either as “Celluloid Baby 2}i\" with Chenille stem” (manufacturer’s item number T-8294) or “Celluloid Baby with Milk Bottle & Diaper on stem, movable hands” (manufacturer’s item number T-8382), that were classified under paragraph 1513 of the Tariff Act of 1930, which, so far as pertinent, reads as follows: Par. 1513. Dolls * * * composed wholly or in chief value of any product provided for in paragraph 31, having any movable member or part, 1 cent each and 60 per centum ad valorem; not having any movable member or part, 1 cent each and 50 per centum ad valorem; * * *. The articles identified by manufacturer’s number T-8294, supra, were assessed at the rate of 50 per centum ad valorem, and those represented by manufacturer’s number T-8382, supra, were assessed at the rate of 60 per centum ad valorem. Plaintiffs claim that the merchandise being equipped with a chenille stem (item T-8294, supra) or with chenille stem, milk bottle, and diaper (item T-8382, supra) is something more than dolls, and that, therefore, these articles are properly classifiable under the provision for articles, not specially provided for, wholly or in chief value of cellulose compounds, other than cellulose acetate, in paragraph 31 (b)' (2) of the Tariff Act of 1930, as modified by T. D. 52373, supplemented by T. D. 52462, carrying a dutiable rate of 30 per centum ad valorem. At the trial, counsel for the respective parties submitted these protests on an oral stipulation to the effect that the merchandise in question is the same in all material respects as the article which was the subject of our decision in W. C. Sullivan & Co. v. United States, 37 Cust. Ct. 385, Abstract 60266, the record in which case was incorporated herein by consent. The incorporated case involved an issue identical with that presented herein. The merchandise involved therein (plaintiff’s collective exhibit 1) was described as— * * * a flesh-colored, hollow, celluloid doll," }, { "docid": "22633048", "title": "", "text": "Lawrence, Judge: Certain imported electric flatirons were classified by the collector of customs as household utensils pursuant to the provisions of paragraph 339 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 339), and duty was imposed thereon at the rate of 40 per centum ad valorem. Plaintiffs, by their protest, claim that the merchandise should be classified as articles having as an essential feature an electrical element or device and dutiable, accordingly, at 15 per centum ad valorem as provided in paragraph 353 of said act (19 U. S. C. § 1001, par. 353), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802), or, alternatively, that the merchandise consists of articles or wares not specially provided for, composed of metal, and dutiable at 22% per centum ad valorem in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said General Agreement on Tariffs and Trade. The Statutes The statutes above cited read, so far as pertinent here, as follows: Paragraph 339 of the Tariff Act of 1930: Par. 339. Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for: * * * composed wholly or in chief value of copper, brass, steel, or other base metal, not plated with platinum, gold, or silver, and not specially provided for, 40 per centum ad valorem; the foregoing rates shall apply to the foregoing articles whether or not containing electrical heating elements as constituent parts thereof. Paragraph 353 of said act, as modified, supra: * * * articles having as an essential feature an electrical element or device, such as electric motors, fans, locomotives, portable tools, furnaces, heaters, ovens, ranges, washing machines, refrigerators, and signs; all the foregoing (not including electrical wiring apparatus, instruments, and devices), finished or unfinished, wholly or in chief value of metal, and not specially provided for: * * * * * * * Other articles (except machines for determining the strength of materials or articles in tension, compression, torsion, or shear; flashlights; batteries;" }, { "docid": "16727579", "title": "", "text": "Lawrence, Judge: The importation in controversy from Germany is described in the entry papers as “calculating machines (Rech-enmaschinen).” The collector of customs classified the commodity as within the provision for mathematical instruments in paragraph 360 of the Tariff Act of 1930 (19 U.S.C. §1001, par. 360), as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and duty was imposed thereon at the rate of 27 per centum ad valorem. Plaintiffs claim that said devices should be properly classified as articles or wares not specially provided for, composed wholly or in chief value of metal, in paragraph 397 of said act (19 U.S.C. § 1001, par. 397), as modified by the sixth protocol, supra, and subjected to duty at the rate of 20 per centum ad valorem. The pertinent provisions of the statutes involved herein read as follows. Paragraph 360 of the Tariff Act of 1930, as modified by the sixth protocol, supra: Scientific and laboratory instruments, apparatus, utensils, appliances (including mathematical instruments but not including surveying instruments), and parts thereof, wholly or in chief value of metal, and not plated with gold, silver, or platinum, finished or unfinished, not specially provided for: Slide rules *• * * Other * * *_27% ad val. Paragraph 397 of said act, as modified, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver, or colored with gold lacquer: Not wholly or in chief value of tin or tin plate: Carriages, drays * * * Other, composed wholly or in chief value of iron, steel, brass, bronze, zinc, or aluminum * * *-20% ad val. The merchandise is represented by plaintiffs’ exhibit 1, which is a flat metal article, rectangular in shape, measuring approximately 5% inches by 3% inches in size. On the face of the exhibit, at the top, are the words— CALCULATING MACHINE and at the" }, { "docid": "14349618", "title": "", "text": "in entry 798829 of protests 59/17114 and 59/17115, introduced into evidence as plaintiff’s exhibits 2 and 4, respectively, were classified as articles, wholly or in chief value of surface-coated paper, within the provisions of paragraph 1405 of said act, as modified by the Japanese Protocol to the General Agreement on Tariffs and Trade, 90 Treas. Dec. 234, T.D. 53865, supplemented by Presidential notification, 90 Treas. Dec. 280, T.D. 53877, at the rate of 2y2 cents per pound and 10 per centum ad valorem. Those folders invoiced as “Folio” in entry 760486 of protest 61/10732, introduced into evidence as plaintiff’s exhibit 6, were assessed with duty at, the rate of 10 per centum ad valorem pursuant to the provision in paragraph 1410 of said act, as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, as pamphlets, not specially provided for, of other than bona fide foreign authorship. The sole claim in the protests, as originally filed, was that all of these folders are dutiable at the rate of 5 per centum ad valorem in said paragraph 1410, as modified, supra, as pamphlets and/or printed matter, not specially provided for, of bona fide foreign authorship. At the trial, however, counsel for the plaintiff stated that it was the intention of plaintiff also to rely upon the failure of Government officials to follow the provisions of section 315(d) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1953, and of section 16.10(a) of the Customs Regulations in issuing notice of change of practice. The respective provisions which are here involved, insofar as pertinent, read as follows: Paragraph 1413 of the Tariff Act of 1930, as modified, supra— Manufactures of paper, or of which paper is the component material of chief value, not specially provided for (except ribbon fly catchers or fly ribbons)-17%% ad val. Paragraph 1405 of said act, as modified, supra— Bags and other articles (not including printed matter), not specially provided for, which are dutiable under paragraph 1405, Tariff Act of 1980, by reason of being composed wholly or" }, { "docid": "4616866", "title": "", "text": "Lawrence, Judge; So-called sewing-machine heads were classified by the collector of customs as parts of sewing machines, valued at over $10 each, which are enumerated in paragraph 372 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 372), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade (86 Treas. Dec. 121, T. D. 52739), and subjected to duty at the rate of 10 per centum ad valorem. Plaintiff claims by its protest that the articles in question, which were imported without an electric motor or other driving mechanism, are, in fact, sewing machines, valued at not over $10 each, within the meaning of that term in said paragraph 372, as modified, supra, and dutiable accordingly at 7½ per centum ad valorem. The statutory provisions with which we are here concerned read, so far as pertinent, as follows: Paragraph. 372 of the Tariff Act of 1930, as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, supra, supplemented by Presidential proclamation (86 Treas. Dec. 337, T. D. 52820): Sewing machines, not specially provided for, valued not over $10 each---7)4% ad val. * * * * * * * Parts, not specially provided for, wholly or in chief value of metal or porcelain, of any article provided for in any item 372 in this Part: Parts of sewing machines- 10% ad val. ^ H* ❖ H* The record discloses the following facts, which are not disputed: At the trial, it was stipulated that the merchandise in controversy, represented by exhibit 1, is valued at less than $10. If, therefore, the so-called sewing-machine heads in issue are held to be, in fact, sewing machines, they are properly dutiable as such at 7% per centum ad valorem, as claimed by plaintiff. The merchandise consists of the conventional sewing-machine “heads,” comprising a horizontal and a vertical arm, and the flat plate or “bed” to which the vertical arm is joined, together with the various parts, including a needle, which complete the mechanism. It is composed of cast iron and steel, painted and" }, { "docid": "22689185", "title": "", "text": "Rich, Judge, delivered the opinion of the court: This is an appeal by the importer from the judgment of the United States Customs Court, First Division (C. D. 1853), one judge dissenting, holding merchandise covered by Protest 230473-K, invoiced as “Iron Works, Metal fruits w/leaves” and classified as “artificial fruits,” and Protest 279842-K, invoiced as “Iron pictures of 4 season flowers rusty finish with dull black wooden frame” and classified as “artificial flowers” to be dutiable as classified by the collector at 45% ad valorem under paragraph 1518, Tariff Act of 1930, as modified by T. D. 51898. Appellant contends that the instant merchandise is not artificial flowers or fruits within the meaning of paragraph 1518 and that said merchandise is properly dutiable at 22⅝% ad valorem under paragraph 397 of the Act, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, as articles or wares in chief value of base metal. It has been stipulated that the involved articles are in chief value of base metal, not plated or in part of gold, silver, or platinum, or colored with gold lacquer. The applicable portions of the involved statutes are as follows: Paragraph 1518, as modified by the General Agreement on Tariffs and Trade, T. D. 51802, supplemented by T. D. 51898: Artificial or ornamental fruits, vegetables, grasses, grains, leaves, flowers, stems, or parts thereof; and boas, boutonnieres, wreaths, and all articles not specially provided for, composed wholly or in chief value of any of the foregoing: * * * # * * * When composed wholly or in chief value of other materials and not specially provided for: * * * * * * * Other-45% ad val. Paragraph 397, as modified by the General Agreement on Tariffs and Trade» T. D. 51802: Articles or wares not specially provided for, whether partly or wholly manufactured: * * ⅛ * * jfc * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold, or silver," }, { "docid": "23358377", "title": "", "text": "Lawrence, Judge: The three protests enumerated in the schedule attached hereto have been consolidated for purposes of decision. The question presented to the court thereby is whether certain lock cylinders, each with two keys, composed of metal, described on the invoices accompanying the entries as “part plugs for automobile gas tank caps for further manufacture with 2 keys each” properly are subject to classification as articles not specially provided for, composed in chief value of steel, in paragraph 397 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 397), as modified by the Sixth Protocol of Supplementary Concessions to the General Agreement on Tariffs and Trade, 91 Treas. Dec. 150, T.D. 54108, and dutiable at the rate of 19 per centum ad valorem, plus the pertinent copper tax assessment where applicable pursuant to section 4541 of the Internal Revenue Code (26 U.S.C. § 4541), or as amended. The contention relied upon by plaintiff herein is that said articles should properly have been classified as parts of automobiles in paragraph 369(c) of said act (19 U.S.C. § 1001, par 369(c)), as modified by the sixth protocol, supra, and subjected to duty at the rate of 10% per centum ad valorem. The pertinent statutory provisions referred to are here set forth. Paragraph 397 of the Tariff Act of 1930, as modified by the sixth protocol, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: ******* Composed wholly or in chief value of iron, steel, copper, brass, nickel, pewter, zinc, aluminum, or other base metal (except lead), but not plated with platinum, gold, or silver, or colored with gold lacquer: ******* Not wholly or in chief value of tin or tin plate : Carriages, drays, * * * # * * # * * * Other, composed wholly or in chief value of iron, steel * * *_19% ad val. Paragraph 369 of said act, as modified by the sixth protocol, supra: (a) Automobile trucks valued at $1,000 or more each, automobile truck and motor bus chassis valued at $750 or more each, automobile truck bodies valued" }, { "docid": "17806885", "title": "", "text": "LawebNCe, Judge: This case relates to importations of so-called steel pins or wire pins, having a diameter of 0.294 to 0.296 inches and 1}{ or % inches long. The collector of customs classified the merchandise as articles, wholly or partly manufactured, composed in chief value of base metal, in paragraph 397 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 397), as modified by the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802, and duty was imposed thereon at the rate of 22% per centum ad valorem. The five protests enumerated in the attached schedule, which is incorporated herein, were consolidated for hearing and determination. At the trial, plaintiff relied upon the following three claims which are contained in the protests directly or by amendment: 1. We claim that the merchandise should be classified as rivets brightened, with duty at 15% ad valorem, under paragraph 332, as modified, T. D. 51802. 2. We also claim that the merchandise should be classified under paragraph 331, as modified, T. D. 51802, as nails or spikes made of iron or steel wire, not less than 1 inch in length, nor smaller than 6%ooo of 1 inch in diameter, for which the duty was %o cents per pound. That claim is made in connection with the articles that are 1 % inches long. 3. On the articles that are % inches long, we made the claim, under paragraph 331, with duty at 1J4 cents per pound, under the provision for other iron or steel nails, not specially provided for. It was pointed out by plaintiff that the last two claims are predicated upon the length of the particular articles. The text of the statutes involved herein, so far as pertinent, reads as follows: Paragraph 397, as modified, sufra: Articles or wares not specially provided for, whether partly or wholly manufactured: # # * # * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with" }, { "docid": "23258856", "title": "", "text": "the finished engraved roller upon which the higher rate was sought and this article was taken out of the provision for textile machinery and parts thereof and the unfinished article was left in the paragraph. Our appellate court there held the unfinished roller to be properly dutiable under the provisions of paragraph 372 of the Tariff Act of 1922 as parts of textile machinery, and the finished roller dutiable under paragraph 396 of said act as a print roller. In United States v. Schenkers, Inc., supra, it appears that certain copper rollers intended, when properly engraved, to be used in printing or stamping designs on silk cloth had been classified by the collector as articles composed wholly or in chief value of metal under paragraph 399 of the Tariff Act of 1922. The court held, however, that they were properly classifiable under paragraph 372 of said act as unfinished parts of a textile machine. We quote from the opinion of the court as follows: In this court the Government has invoked another paragraph under which it insists the merchandise should be classified, to» the exclusion of both the paragraph fixed upon by the collector and that under which appellee claims, and asks us to hold applicable paragraph 396, which reads: Print rollers and print blocks used in printing, stamping, or cutting designs for wall or crepe paper, linoleum, oil cloth, or other material, not specially provided for, composed wholly or in chief value of iron, steel, copper, brass, or any other metal, 60 per centum ad valorem. * * * * * * * The principal insistence of the Government here is that the merchandise in question falls under the eo nomine provision of paragraph 396, supra, which specifically mentions print rollers. The contention is that the importations are known as print rollers and have become dedicated to the only use for which they are manufactured. After considering tbe cases of United States v. Lyon & Healy, supra, and United States v. Riga, supra, our appellate court said— The principle applied in those two cases was that where a material" }, { "docid": "5144197", "title": "", "text": "Lawrence, Judge: The question presented for our consideration here is whether certain imported articles of brass in lengths of 7 feet and 12 feet, identified on the invoices accompanying the entries by die Nos. 2159, 2160, 2161, 2164, and 2789, should be classified as brass rods in paragraph 381 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 381), as modified by the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802), and subjected to duty at the rate of 2 cents per pound, as claimed by plaintiff, or were properly classified by the collector of customs as articles or wares not specially provided for, if composed wholly or in chief value of brass, as provided in paragraph 397 of said act (19 U. S. C. § 1001, par. 397), as modified by said General Agreement on Tariffs and Trade, and dutiable at 22K per centum ad valorem. The pertinent text of the competing statutory provisions is here set forth— Paragraph 381 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, supra: Brass rods, sheet brass, brass plates, bars, and strips, Muntz or yellow metal sheets, sheathing, bolts, piston rods, and shafting. 20 per lb. Paragraph 397 of said act, as modified, supra: Articles or wares not specially provided for, whether partly or wholly manufactured: * * * * * * * Composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal (not including platinum, gold, or silver), but not plated with platinum, gold,, or silver, or colored with gold lacquer: * * * * * * Other (except slide fasteners and parts thereof)_ 22)4% ad val. At the trial, five protests, which are enumerated in the schedule attached to and made part of this decision, were consolidated for the purposes of this case. Six witnesses were called on behalf of plaintiff; none was called by the Government. Thirty-seven exhibits were introduced by plaintiff and five by defendant, and will be referred to infra, wherever necessary." }, { "docid": "22313727", "title": "", "text": "Rao, Judge: Plaintiff herein seeks to recover duties alleged to have been illegally assessed upon certain Easter ornaments of paper. The collector of customs at the port of New York classified this-merchandise as manufactures of paper, not specially provided for, and assessed duty thereon at the rate of 35 per centum ad valorem, as provided for in paragraph 1413 of the Tariff Act of 1930. The claim in each of the pending protests is that these articles are in fact boxes which fall within the provision in said paragraph 1413 for “boxes, composed wholly or in chief value of paper, papier-máché or paper board, and not specially provided for,” and are accordingly dutiable at the rate of 17% per centum ad valorem, pursuant to the modification of said provision in the General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T. D. 51802. There being no dispute that the articles at bar are wholly or in .chief value of paper, the only issue which here concerns us is whether or not they are in fact boxes. It is the contention of the plaintiff that this question must be answered in the affirmative for the reason that the common meaning of the word “boxes” includes the instant merchandise. The Government, of course, argues to the contrary. The samples of the merchandise which have been received in evidence, together with the oral testimony adduced herein, reveal that- they are small, brightly colored articles, more or less in the form of chicks, rabbits, ducks, and the like, used to contain candies suitable for the season of which they are symbolic. These articles are so constructed that they all come apart in one manner or another- — some split in the middle; others have a removable base or head — -and they are all hollow. The proposition that the common meaning of a statutory term is a matter of law to be determined by the court is by now so well established that we deem the citation of any cases in support thereof to be unnecessary. It is equally well established that in" }, { "docid": "6862651", "title": "", "text": "Lawrence, Judge: Tbe merchandise in controversy is described on the consular invoice as poppy-seed mills and grating mills. Both items were classified by the collector of customs as food-grinding household utensils, in chief value of steel, and duty was imposed thereon at the rate of 40 per centum ad valorem as provided in paragraph 339 of the Tariff Act of 1930 (19 U. S. C. § 1001, par. 339). Although various claims for lower rates of duty are alleged by plaintiff in its protest, the one relied upon is that both of the mills should be classified as “* * * household * * * utensils, * * * not specially provided for (except * * * household food grinding or cutting utensils other than meat and food choppers), * * * Other: * * * Composed wholly or in chief value of * * * steel * * * 20% ad val.,” pursuant to the terms of said paragraph 339, as modified by .the General Agreement on Tariffs and Trade (82 Treas. Dec. 305, T. D. 51802). At the trial, all other claims were abandoned. The pertinent text of paragraph 339 is here set forth. Paragraph 339 of the Tariff Act of 1930: Par. 339. Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for: * * * composed wholly or in chief value of * * * steel, * * * and not specially provided for, 40 per centum ad valorem; * * *. Paragraph 339, as modified, supra: Table, household, kitchen, and hospital utensils, and hollow or flat ware, not specially provided for (except articles composed wholly or in chief value of tin or tin plate, electric flatirons, fly swatters, illuminating articles, and household food grinding or cutting utensils other than meat and food choppers), whether or not containing electrical heating elements as constituent parts thereof: * * * * * * * Other: ******* Composed wholly or in chief value of iron, steel, copper, or antimony_ 20% ad val. At the trial, the only witness who appeared was Paul K. Hamburg," }, { "docid": "22416843", "title": "", "text": "Lawrence, Judge: The merchandise involved in this protest is identified herein as a map measure compass. It was classified as a mathematical instrument, composed wholly or in chief value of metal, and not plated with gold, silver, or platinum, not specially provided for, in paragraph 360 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 360), as modified by the Torquay Protocol to the General Agreement on Tariffs and Trade, 86 Treas. Dec. 121, T.D. 52739, supplemented by Presidential notification, 86 Treas. Dec. 337, T.D. 52820, which provides for duty at the rate of 30 per centum ad valorem. Plaintiff’s principal claim is that the article is properly classifiable as a machine, not specially provided for, in paragraph 372 of said act (19 U.S.C. § 1001, par. 372), as modified by Torquay protocol, supra, and dutiable at the rate of 13% per centum ad valorem. Alternatively, plaintiff claims that the merchandise in question is dutiable at the rate of 22% per centum ad valorem within the residuary provision in paragraph 397 of the Tariff Act of 1930 (19 U.S.C. § 1001, par. 397), as modified by General Agreement on Tariffs and Trade, 82 Treas. Dec. 305, T.D. 51802, for articles, not specially provided for, composed wholly or in chief value of base metal, but not plated with platinum, gold, or silver, or colored with gold lacquer. All of the evidence herein was introduced by plaintiff. An examination of a sample of the merchandise in its condition as imported shows that it is enclosed in a paper box (exhibit 1-B), about 3% inches long and 2 inches wide, that serves as a container for the leather sheath (exhibit 1-A), holding the map measure compass (exhibit 1), which is the subject of the present controversy. The president of the Scope Instrument Corp., Kenneth Fisher, importer of the present merchandise, described the use and operation of the map measure compass hr question. It has the shape of a watch, having a circular metal case approximately 1% inches in diameter. One side of the metal case contains a magnetic direction compass. The" } ]

[ { "docid": "93020", "title": "", "text": "administrative remedies,” that his claim was dismissed without prejudice, and that the case was “terminated.” II. DISCUSSION We disagree with the district court’s grant of summary judgment in favor of Defendants for failure to exhaust, and hold that the district court should hear both of Hernandez’s claims on the merits. First, regarding the excessive force claim, the grievance process was unavailable to Hernandez during the relevant period. This lifts the PLRA exhaustion requirement entirely and provides immediate entry into federal court. Second, regarding the deliberate indifference claim, Hernandez followed the CCDOC grievance process, and therefore properly exhausted his administrative remedies under the PLRA. Both claims are properly in federal court. A. Standard of Review We review dismissals for failure to exhaust administrative remedies de novo. E.g., Reynolds v. Tangherlini, 737 F.3d 1093, 1098-99 (7th Cir.2013) (citations omitted). “Failure to exhaust is an affirmative defense,” and Defendants have the burden of proof. King v. McCarty, 781 F.3d 889, 893 (7th Cir.2015) (citing Westefer v. Snyder, 422 F.3d 570, 577 (7th Cir.2005), and Massey v. Helman, 196 F.3d 727, 735 (7th Cir.1999)). Further, at the summary judgment phase, we construe the facts in the light most favorable to the non-moving party — here, Hernandez. Rahn v. Bd. of Trustees of N. Ill. Univ., 803 F.3d 285, 287 (7th Cir.2015) (citation omitted); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir.2006) (citation omitted). Here, Defendants have failed to produce evidence that Hernandez did not exhaust his administrative remedies. B. District Court’s Dismissal Was Final As a threshold matter, Defendants argue that because the district court dismissed Hernandez’s claims without prejudice, its order was not final and we have no jurisdiction over the appeal. See 28 U.S.C. § 1291 (federal courts of appeal have jurisdiction over appeals “from all final decisions of the district courts of the United States”). Defendants are correct in a general sense, because “[n]ormally, a dismissal without prejudice is not a final order for purposes of appellate jurisdiction under 28 U.S.C. § 1291.” Kaba, 458 F.3d at 680 (citing Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir.2003)). But this" } ]

[ { "docid": "4179316", "title": "", "text": "(explaining that'the effect of an agreement settling FCA claims is a question of federal common law as to which the Restatement (Second) of Contracts provides guidance). The Release itself, therefore, could not serve as a defense to any claims that the Relators (or other non-signatories) might assert against Purdue. Indeed, we made this very point in Radcliffe when we noted that the Release “did not prohibit the government or another relator from pursuing similar claims against Purdue.” Radcliffe, 600 F.3d at 329 n. 8. Our decision in Raddiffe enforcing the Release did not (and could not) broaden the scope. of the Release. Accordingly, because the Release does not bar non-signatories from proceeding against Purdue, the judgment enforcing the Release cannot bar such claims. Purdue’s arguments to the contrary are not persuasive. Our dismissal in Raddiffe may well have been a dismissal “on the merits” under Rule 41. See Fed.R.Civ.P. 41 (“Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule— except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.”); Shoup v. Bell & Howell Co., 872 F.2d 1178, 1181 (4th Cir.1989) (“[F]or purposes of res judicata, a summary judgment has always been considered a final disposition on the merits.” (internal quotation marks omitted)). As the Supreme Court has explained, however, “it is no longer true that a judgment ‘on the merits’ [for purposes of Rule 41] is necessarily a judgment entitled to claim-preclusive effect.” Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (emphasis added). As discussed above, the preclusive effect of a judgment enforcing a settlement agreement is determined by the intent of the parties as reflected by the terms of that agreement, and the Release did not bar anyone other than Mark Radcliffe from bringing suit against Purdue. Regardless of the procedural vehicle through which our decision enforcing the Release was entered, our decision simply did not broaden-the scope of the Release. See Am." }, { "docid": "5316101", "title": "", "text": "States Supreme Court in Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Semtek addressed the proper reading of Rules 41(a) and 41(b) in terms of the claim-preclusive effect of a federal court’s dismissal with prejudice-amounting to an “adjudication on the merits” under Rule 41(b) — on a later state court action (or its analytical equivalent, a federal diversity action governed by state law under Erie v. Tompkins principles). By contrast, what is posed here is the effect of a prior federal-question judgment of dismissal on a second federal-question case. And on that latter score Semtek, 531 U.S. at 505, 506, 121 S.Ct. 1021 (emphasis partly added) confirms: The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. We think, then, that the effect of the “adjudication upon the merits” default provision of Rule 41(b) — and, presumably, of the explicit order in the present case that used the language of that default provision — is simply that, unlike a dismissal “without prejudice,” the dismissal in the present case barred refiling of the same claim in the United States District Court for the Central District of California. That is precisely what is at issue here (in this instance, barring the filing of the Bivens action — involving the same substantive federal-question claim — in the United States District Court for the District of Colorado). Hence this Court’s already-discussed ruling in Engle (like the other Circuits’ rulings in Hoosier Bancorp and Gasho) is reinforced rather than in any way vitiated by Semtek. In sum, the district court’s holding that Section 2676 does not preclude Farmer’s Bivens claims is plainly incorrect. And that error commands outright reversal. Farmer’s Contrary Contentions Farmer advances two arguments as to why Section 2676 should not apply to bar her Bivens claims under the" }, { "docid": "776953", "title": "", "text": "that might be given preclusive effect was commenced in federal court. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)(citing Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 83 L.Ed. 104 (1938)); Matter of Energy Co-op., Inc., 814 F.2d 1226, 1230 (7th Cir.1987)(citations omitted). The party-asking for its application has the burden of establishing preclusion. ITOFCA, Inc. v. MegaTrans Logistics, Inc., 322 F.3d 928, 933 (7th Cir.2003)(citing Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 517 (7th Cir.1993)). Doubts are resolved against preclusion. Id. (citing In re Associated Vintage Group, Inc., 283 B.R. 549, 562 (9th Cir. BAP 2002)). Three showings must be made before a claim will be precluded: (i) an identity of the parties or their privies; (ii) an identity of the causes of action; and (iii) a final judgment on the merits. People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 177 (7th Cir.1995)(citing Barnett v. Stern, 909 F.2d 973, 979 (7th Cir.1990)). The fact that an earlier cause of action ended with a consent judgment “does not prevent the earlier judgment from having a res judicata effect.” Martino v. McDonald’s System, Inc., 598 F.2d 1079, 1083 (7th Cir.1979), cert. den., 444 U.S. 966, 100 S.Ct. 455, 62 L.Ed.2d 379 (1979)(citations omitted). Finding the presence of the same parties in the prior and current lawsuits appears to be a straightforward and easy task. Finding the existence of privity with a party in a prior lawsuit is harder to pin down. See People Who Care, 68 F.3d at 177. However, “[w]hile ‘[privity is an elusive concept,’ it is generally applied to those with a sufficiently close identity of interests.” Id. (citing In re L & S Industries, Inc., 989 F.2d 929, 932 (7th Cir. 1993)). Importantly, however, “privity does not automatically arise” if the prior and current litigants share a close relationship, rather, “[s]ome additional link is necessary.” L & S, 989 F.2d at 934. For example, a qualifying link would exist to trigger claim preclusion, if a corporate shareholder asserted a" }, { "docid": "22452020", "title": "", "text": "prejudice is inappropriate because such a dismissal may improperly prevent a litigant from refiling his complaint in another court that does have jurisdiction. Gold v. Local 7 United Food & Comm’l Workers, 159 F.3d 1307, 1311 (10th Cir.1998). Second, and perhaps more essentially, once a court determines it lacks jurisdiction over a claim, it perforce lacks jurisdiction to make any determination of the merits of the underlying claim. Id. (applying Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)); Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.2004). The continuing validity of the first of these principles has recently been qualified, if not disavowed, by a panel of this court. See Styskal v. Weld County Bd. of County Comm’rs, 365 F.3d 855 (10th Cir.2004). Styskal, while not purporting to overrule our prior authority on this question, nevertheless concludes that the Supreme Court’s opinion in Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) has effectively undermined the preclusion rationale that supported the “without prejudice” requirement. Styskal, 365 F.3d at 858 (“The premise underlying these decisions is that a dismissal of a claim with prejudice necessarily has claimpreclusive effects in other jurisdictions. .. .That premise, however, was recently rejected by the United States Supreme Court [in Semtek ].”). Because the broad language in Styskal concerning Semtek’s effect on jurisdictional dismissals has the potential to create some confusion, we take this opportunity to clarify our law on this subject. To begin with, Semtek must be read within its factual and analytical context. The facts underlying the Supreme Court’s decision in Semtek were these. The District Court for the Central District of California had entered a dismissal of an action time-barred under California’s two-year statute of limitations “on the merits and with prejudice.” Semtek, 531 U.S. at 499, 121 S.Ct. 1021. The plaintiff attempted to re-file the action in Maryland state court, where it was not time-barred under that state’s more generous three-year limitations statute. The Maryland Court of Special Appeals found that the" }, { "docid": "5316100", "title": "", "text": "in an action under section 1346(b).” Second, any suggestion that prior FTCA judgments bar Bivens claims against defendants only in their official capacities contradicts the very nature of a Bivens action. There is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity. Instead, any action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States (Weaver v. United States, 98 F.3d 518, 520 (10th Cir.1996); Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir.1989)). Because a Bivens claim may not be brought directly against the United States as such, an “official capacity Bivens suit” would be an oxymoron (FDIC v. Meyer, 510 U.S. 471, 484-85, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997)). For that reason as well, the district court’s statement does not withstand analysis. Nothing said here is affected by last Term’s opinion of the United States Supreme Court in Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Semtek addressed the proper reading of Rules 41(a) and 41(b) in terms of the claim-preclusive effect of a federal court’s dismissal with prejudice-amounting to an “adjudication on the merits” under Rule 41(b) — on a later state court action (or its analytical equivalent, a federal diversity action governed by state law under Erie v. Tompkins principles). By contrast, what is posed here is the effect of a prior federal-question judgment of dismissal on a second federal-question case. And on that latter score Semtek, 531 U.S. at 505, 506, 121 S.Ct. 1021 (emphasis partly added) confirms: The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. We think, then, that" }, { "docid": "14116597", "title": "", "text": "the INA when the petition for review essentially disputes the correctness of an IJ’s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law. Id. at 328-29 (quoting 8 U.S.C. § 1252(a)(2)(D)). As several of our sister Circuits have held, the application of res judicata is an issue of law that we have jurisdiction to review. See, e.g., Andrade v. Gonzales, 459 F.3d 538, 542, 545 (5th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 973, 166 L.Ed.2d 739 (2007); Hamdan v. Gonzales, 425 F.3d 1051, 1057, 1059-60 (7th Cir.2005). This conclusion is supported by the fact that we long have applied the de novo standard of review to a district court’s application of res judicata. See Nestor v. Pratt & Whitney, 466 F.3d 65, 70 (2d Cir.2006); Legnani v. Alitalia Linee Aeree Italiane, S.p.A., 400 F.3d 139, 141 (2d Cir.2005) (per curiam). Res judicata evokes the common law principles of judicial economy and comity. It provides that a final judgment on the merits bars a subsequent action between the same parties over the same cause of action. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (citing cases). Provided the parties have had a full and fair opportunity to litigate the matter, “[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” SEC v. First Jersey Sec., Inc., 101 F.3d 1450, 1463 (2d Cir.1996) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981)) (internal quotation marks omitted). Relying principally on the strength of Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 435 U.S. 519, 543-44, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978), the Government asserts that “the common law preclusion rules that federal courts have developed for federal court proceedings cannot be imposed on agencies by reviewing courts.” Appellee Brief at 20. However, the BIA already has determined that" }, { "docid": "22289539", "title": "", "text": "of Land Mgmt., No. 01-3063 (D.Or.). . The record in this case is silent on what happened next, but we may take judicial notice of the American Lands docket, which shows that all the original plaintiffs in that case filed a motion for relief from the earlier dismissal on July 9, 2001, four days after the Headwaters complaint was filed. See Biggs v. Terhune, 334 F.3d 910, 915 n. 3 (9th Cir.2003) (\"Materials from a proceeding in another tribunal are appropriate for judicial notice.”). The American Lands plaintiffs withdrew that motion on August 9, 2001, after the district court's sua sponte dismissal of this case. . We note that a stipulated dismissal \"with prejudice” under Rule 41 of the Federal Rules of Civil Procedure may not have res judicata effect, even for the named parties in that suit, in another court. In Semtek International, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001), the Supreme Court noted that although such dismissals are commonly denominated adjudications \"on the merits,” only a judgment that \"actually passes directly on the substance of a particular claim before the court ... triggers the doctrine of res judicata or claim preclusion.” Id. at 501-02, 121 S.Ct. 1021 (alterations and citation omitted). Consequently, a dismissal with prejudice in federal court \"bar[s] refiling of the same claim in” the same district court, but is only \"a necessary condition, not a sufficient one, for claim-preclusive effect in other courts.” Id. at 506, 121 S.Ct. 1021. As this case was filed in the same district court as the one claimed to be preclusive, however, the otherwise important distinction made in Semtek is not pertinent to this prong of the inquiry. . Trenchant opinions from other circuits in recent years have questioned the utility of the term “virtual representation” and the concepts it has encompassed, especially in light of the Supreme Court's analysis in Richards. See Becherer v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 193 F.3d 415, 422-24 (6th Cir.1999) (en banc); id. at 431-32 (Moore, J., concurring in the judgment); Tice v. Am." }, { "docid": "5668935", "title": "", "text": "the “direct” knowledge requirement. However, in the interest of judicial efficiency, we now address the district court’s conclusion regarding Lockheed’s affirmative defense. Assuming without deciding that the district court would find subject matter jurisdiction present on remand, we disagree with the district court’s determination that Mayfield I precludes Mayfield from raising his qui tam claims in Mayfield II. When a federal court is asked to give claim preclusive effect to a state court judgment, the federal court must determine the preclusiveness of that state court judgment according to the principles of claim preclusion of the state from which the judgment was rendered. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001); Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir.1996). Here, because a Texas state court rendered the judgment in Mayfield I, we must defer to Texas’s law on claim preclusion. A. The Doctrine of Claim Preclusion under Texas Law In Texas, “[r]es judicata or claim preclusion prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992). For a judgment to have claim preclusive effect in a later action, the proponent must demonstrate the existence of three elements: (1) there was a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of the parties or those in privity with them exists between the two actions, and (3) the second action is based on the same claims as were raised or could have been raised in the first action. Am-stadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996). B. Application of the Factors Here, Mayfield does not contest the satisfaction of the first element — that a prior final judgment on the merits by a court of competent jurisdiction was rendered. However, he maintains that the district court erred in holding, in a footnote, that “Mayfield" }, { "docid": "23134481", "title": "", "text": "commonly understood meaning of this term. See [Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997) ]. “Adjudicated on the merits” has a well settled meaning: a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground. See e.g., Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 ... (2001) (noting one definition of an “on the merits” adjudication as “one that actually passes directly on the substance of a particular claim before the court”) (internal quotation marks and alterations omitted). See also, e.g., Black’s Law Dictionary 42 (7th ed.1999) (adjudication: “1. The legal process of resolving a dispute; the process of judicially deciding a case. 2. Judgment.”; adjudicate: “1. To rule upon judicially. 2. Adjudge.”); Webster’s Third New Int’l Dictionary 27 (1993) (adjudicate: “to settle finally (the rights and duties of the parties to a court case) on the merits of issues raised; enter on the records of a court (a final judgment, order, or decree of sentence)”). Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.2001). In Rompilla v. Horn, 355 F.3d 233 (3d Cir.2004), rev’d on other grounds sub nom. Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005), we quoted with approval the Second Circuit’s interpretation of “adjudicated on the merits.” Id. at 247 (quoting Sellan, 261 F.3d at 311). Other courts of appeals have done so as well. See Teti v. Bender, 507 F.3d 50, 56-57 (1st Cir.2007); Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.2004); see also Muth v. Frank, 412 F.3d 808, 815 (7th Cir.2005); Schoenberger v. Russell, 290 F.3d 831, 840 (6th Cir.2002) (Keith, J., concurring). We reiterate today our approval of the Second Circuit’s interpretation of “adjudicated on the merits.” For the purposes of Section 2254(d), a claim has been “adjudicated on the merits in State court proceedings” when a state court has made a decision that 1) finally resolves the claim, and" }, { "docid": "12461419", "title": "", "text": "Inc. v. Lockheed Martin Corp., 531 U.S. 497, 500-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (holding that federal common law, which in turn incorporates state law, governs issues of preclusive effects of federal diversity actions and that Rule 41(b) does not inform issue). In other words, an “adjudication upon the merits” under Rule 41(b) does not operate as a final decision on the merits for purposes of res judicata. Id. at 503-04, 121 S.Ct. 1021. The Supreme Court explained that Rule 41(b)’s use of the phrase “on the merits” only means that the dismissal operates with prejudice, which “is undoubtedly a necessary condition, but it is not a sufficient one, for claimpreclusive effect in other courts.” Id. at 506, 121 S.Ct. 1021. As the Supreme Court’s interpretation of RCFC’s equivalent in the Federal Rules of Civil Procedure binds the court’s interpretation of its counterpart in the Rules of the Court of Federal Claims, RCFC 41(b) does not dispose of the latest complaints. Notwithstanding Rule 41(b), the Federal Circuit has noted that “principles of merger and bar may apply even though a judgment results by default, consent, or dismissal with prejudice although care must be taken to insure the fairness in doing so.” Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305, 1314 (Fed.Cir.1983); see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (“The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.”); Int’l Nutrition Co. v. Horphag Research, Ltd., 220 F.3d 1325, 1328-29 (Fed.Cir.2000) (“Contrary to [appellant’s] argument, default judgments can give rise to res judicata. [Appellant] therefore cannot avoid the bar of res judicata on the ground that [the earlier] opposition was abandoned and dismissed for failure to prosecute.”) (citations omitted); Woods v. Tsuchiya, 754 F.2d 1571, 1583 (Fed.Cir.1985) (“If the alternative sanction of a default judgment under Federal Rule of Civil Procedure" }, { "docid": "17417593", "title": "", "text": "be able to allege a failure to take specific, discrete agency actions “respecting management policies, regulations, contracts, [or] plans” that are “necessary to protect” specific rivers pursuant to § 1283(a). See id.; see also Wilderness Soc’y v. Tyrrel, 918 F.2d 813, 820 (9th Cir.1990) (remanding to the district court the factual question of whether the Forest Service’s grant of permission to harvest burned timber on federal land adjacent to a river in the WSRS fulfilled the Service’s obligations under § 1283). Similarly, the Center may be able to allege a failure to comply with the regulations promulgated by the Departments of Agriculture and the Interior, which provide that, with regard to rivers potentially eligible for inclusion in the WSRS, agencies “will include an analysis of alternatives .... encompassing all reasonable proposals for use of the river area including uses which may be incompatible with designation of the river area as a component of the national system.” 47 Fed.Reg. 39455, 39458 (Sept. 7,1982). In sum, it is not clear beyond doubt that amendment of the complaint would be futile. See Thinket Ink Info. Res., 368 F.3d 1053 (explaining that dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment). Further, contrary to the district court’s belief, dismissal with prejudice may, indeed, preclude the Center from asserting such claims in a separate proceeding under the doctrine of claim preclusion. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (explaining that a dismissal that precludes refiling of the same claim in the same court is an “adjudication upon the merits” under Fed.R.Civ.P. 41(b)); Cent. Delta Water Agency v. United States, 306 F.3d 938, 952-53 (9th Cir.2002) (explaining that claim preclusion applies where the two suits arise out of the same transactional nucleus of facts). We therefore reverse the district court’s denial of the Center’s motion for leave to amend. CONCLUSION The Supreme Court explained in SUWA that a “failure to consider” certain issues while planning for the use and development of land" }, { "docid": "12461418", "title": "", "text": "States, 384 F.3d 1368, 1371 (Fed.Cir.2004) (“Ammex II”). No issue is present in this case that the parties differ in Saladino I, Saladino II, or the instant actions. 1) Preclusive effects of Saladino I as to plaintiff’s prior pleaded claims The hurdle confronted by defendant when invoking res judicata for Saladino I is the requirement that the prior court rendered a final judgment on the merits. In Saladino I, the Court of Federal Claims dismissed the action for failure to prosecute under RCFC 41(b). That rule provides that “[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision [for failure to prosecute] and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, ... operates as an adjudication upon the merits.” This language, specifically the phrase “adjudication on the merits,” appears to signal finality for purposes of claim preclusion. However, the Supreme Court has held that the identical language in Fed.R.Civ.P. 41(b) does not determine whether the dismissal is claim preclusive. See Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 500-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (holding that federal common law, which in turn incorporates state law, governs issues of preclusive effects of federal diversity actions and that Rule 41(b) does not inform issue). In other words, an “adjudication upon the merits” under Rule 41(b) does not operate as a final decision on the merits for purposes of res judicata. Id. at 503-04, 121 S.Ct. 1021. The Supreme Court explained that Rule 41(b)’s use of the phrase “on the merits” only means that the dismissal operates with prejudice, which “is undoubtedly a necessary condition, but it is not a sufficient one, for claimpreclusive effect in other courts.” Id. at 506, 121 S.Ct. 1021. As the Supreme Court’s interpretation of RCFC’s equivalent in the Federal Rules of Civil Procedure binds the court’s interpretation of its counterpart in the Rules of the Court of Federal Claims, RCFC 41(b) does not dispose of the latest complaints. Notwithstanding Rule 41(b), the Federal Circuit has noted that “principles of merger" }, { "docid": "6345388", "title": "", "text": "lack of subject-matter jurisdiction under Rule 12(b)(1) is a final, appealable order. Other circuits have similarly concluded that a district court’s dismissal for lack of subject-matter jurisdiction is generally final and appealable. See, e.g., Radha Geismann, M.D., P.C. v. ZocDoc, Inc., 850 F.3d 507, 509 n.3 (2d Cir. 2017); City of Yorkville ex rel. Aurora Blacktop Inc. v. Am. S. Ins. Co., 654 F.3d 713, 715-16 (7th Cir. 2011); Whisnant v. United States, 400 F.3d 1177, 1180 (9th Cir. 2005). Where subject-matter jurisdiction depends on the factual allegations in the complaint, as it does here, the district court can signal that a dismissal under Rule 12(b)(1) is not final if it expressly gives the plaintiff leave to amend the complaint. See Fed. R. Civ. P. 15(a)(2). A court that has extended such an invitation to amend clearly contemplates that there is still some work for the court to do before the litigation is over. See Riley, 553 U.S. at 419, 128 S.Ct. 1970; see also Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (describing a final decision as one “by which a district court disassociates itself from a case” (quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995))). On the other hand, a court’s statement that its jurisdictional dismissal is “without prejudice” will not, by itself, overcome the presumption that such dismissals terminate the action, not just the complaint. By dismissing without prejudice, a district court leaves the plaintiff free to return later to the same court with the same underlying claim. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). But as Ciralsky explained, either a complaint or an action can be dismissed “without prejudice.” See 355 F.3d at 666-67. Thus, an order of dismissal “without prejudice” tells us nothing about whether the district court intended to dismiss the action, which would be a final order, or the complaint, which would not. By contrast, an express invitation to amend is a much clearer" }, { "docid": "2213318", "title": "", "text": "that the district court erred in dismissing her claim against the pharmaceutical companies with prejudice, Federal Rule of Civil Procedure 41(b) provides, in part, that “[ujnless the dismissal order states otherwise, [an involuntary dismissal] — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.” See Costello v. United States, 365 U.S. 265, 285-86, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). Adjudication on the merits in this context means dismissal with prejudice. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). This court has instructed that “dismissal with prejudice is warranted only when a trial court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks omitted). Applying this standard in Belizan, the court observed that “[t]he standard for dismissing a complaint with prejudice is high.” 434 F.3d at 583. Most recently in Rudder, the court reaffirmed that “[dismissal with prejudice is the exception, not the rule, in federal practice, because it ‘operates as a rejection of the plaintiff’s claims on the merits and [ultimately] precludes further litigation of them.’ ” 666 F.3d at 794 (quoting Belizan, 434 F.3d at 583, and citing see also Krupski v. Costa Crociere S.p.A, — U.S. ——, 130 S.Ct. 2485, 2494, 177 L.Ed.2d 48 (2010) (noting “the preference expressed in the Federal Rules of Civil Procedure ... for resolving disputes on their merits”)). The Firestone standard is met here. The district court, in denying Rollins’s request for leave to amend her complaint as “futile,” found that Rollins “has not indicated that she will be able to plead sufficient facts to state a claim for relief.” Rollins, 802 F.Supp.2d at 125 n. 10. Although this is not the same as a determination by the district court that Rollins “could not allege additional facts that would cure the deficiencies in her complaint,” Belizan, 434 F.3d at 584, Rollins’s objection to dismissal of" }, { "docid": "7984329", "title": "", "text": "stated that by dismissing with prejudice, it sought to preclude plaintiffs from relitigat-ing their claims “elsewhere in this country.” Previously, rule 41(b)’s effect regarding claim preclusion was questioned because of the limited enumerated exceptions to its default rule that judgments generally be deemed “on the merits.” 18 ChaRles AlaN WRIGHT ET AL., FEDERAL PRACTICE AND PrOCEdure § 4435, at 140 (2d ed.2002). Many types of dismissals “do not seem to fall within the categories ‘provided for in this rule’ and yet clearly should not — and do not — operate as an adjudication that precludes a second action on the same claim.” Id. In Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001), the Court reigned in rule 41(b) as a determinant of claim-preclusion, recognizing that the meaning of “judgment on the merits” has changed over time and “has come to be applied to some judgments” (like the instant district court’s f.n.c. dismissal) “that do not pass upon the merits of a claim and hence do not (in many jurisdictions) entail claim-preclusive effect.” Id. at 502, 121 S.Ct. 1021. The Court determined that rule 41(b) primarily “relates to the dismissing court itself.” That is, an “adjudication on the merits” bars refiling of the same claim in the same court but does not establish claim preclusion. Id. at 505-06, 121 S.Ct. 1021. Semtek held that when a diversity court dismisses a claim on state substantive law grounds, the preclusive effect of the judgment is measured not by rule 41(b), but by the preclusion law of the state in which the court sits. The district court, although exercising diversity jurisdiction, dismissed on federal procedural grounds, thus distinguishing Semtek. And despite rule 41(b)’s enabling the court to prevent relitigation of federal f.n.c. principles in a Texas federal court, we cannot, after Semtek, look to the rule as a guide to the judgment’s claim-preclu-sive effect elsewhere. Semtek states that rule 41(b) “would be a highly peculiar context in which to announce a federally prescribed rule on the complex question of claim preclusion, saying in effect, ‘All" }, { "docid": "4354964", "title": "", "text": "entitled to claim-preclusive effect.” See Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). Unfortunately for plaintiff, Semtek has no relevance here, for it dealt with the federalism “question of whether the claim-pre-clusive effect of a federal judgment dismissing a diversity action on statute of limitations grounds is determined by the law of the state in which the federal court sits.” Id. at 499, 121 S.Ct. 1021. There is no issue of federalism before me since Selkridge filed both of her complaints in this Court. Likewise, the fact that I failed to specify that her original complaint was dismissed with prejudice does not imply that the dismissal was without prejudice, thereby enabling Selkridge to file a separate action. Plaintiff need look no further than Rule 41(b) of the Federal Rules of Civil Procedure to determine the preclusive effect of my previous decision. Rule 41(b) provides that “unless the court in its order for dismissal otherwise specifies, a dismissal ... other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.” In granting United of Omaha’s motion for summary judgment because plaintiffs claims were preempted by ERISA, my February 21st dismissal did not fall within any of the three exceptions stated in Rule 41(b). Therefore, the dismissal was with prejudice and bars Selkridge from relit-igating these same claims. See Stewart v. United States Bancorp, 297 F.3d 953 (9th Cir.2002) (rejecting appellant’s identical argument). Reclothing her dismissed claims as ERISA violations does not change the outcome. See Lansdale, 172 F.Supp.2d at 653 n. 17 (citing Restatement (Second) Of Judgments § 25 (1971) (claim preclusion applies even when new grounds or theories or evidence is presented or new remedies or forms of relief are sought)). Moreover, Selkridge clearly could have brought her ERISA claims in her original suit had she sought leave from this Court to amend her complaint. See Discussion II.A. supra at 604; see also Julien, 923 F.Supp. at 717 (“[I]t is well established that" }, { "docid": "776952", "title": "", "text": "doctrine of claim preclusion applies to bankruptcy court decisions. Katchen v. Landy, 382 U.S. 323, 334, 86 S.Ct. 467, 475, 15 L.Ed.2d 391 (1966). In light of the severable nature of proceedings before them, bankruptcy judges can be called upon to decide whether to give claim preclusive effect to one of their own prior orders. See, In re Snider Farms, Inc., 83 B.R. 977, 986 (Bankr.N.D.Ind. 1988); Kroner, 953 F.2d 317 (an order entered in one adversary proceeding given preclusive effect in a separate subsequent adversary proceeding); Pre-Press Graphics, 300 B.R. 902 (Bankr.N.D.Ill. 2003)(claim preclusion considered with respect to an order entered in connection with an administrative claim on a second administrative claim). Importantly however, an order entered by a bankruptcy judge in a non-core matter within which a party did not consent to the entry of final orders is not to be given preclusive effect in a subsequent action. Barnett v. Stern, 909 F.2d 973, 979 (7th Cir.1990). The federal rule of claim preclusion is employed when the prior suit in which the order that might be given preclusive effect was commenced in federal court. Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)(citing Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 83 L.Ed. 104 (1938)); Matter of Energy Co-op., Inc., 814 F.2d 1226, 1230 (7th Cir.1987)(citations omitted). The party-asking for its application has the burden of establishing preclusion. ITOFCA, Inc. v. MegaTrans Logistics, Inc., 322 F.3d 928, 933 (7th Cir.2003)(citing Kulavic v. Chicago & Illinois Midland Ry. Co., 1 F.3d 507, 517 (7th Cir.1993)). Doubts are resolved against preclusion. Id. (citing In re Associated Vintage Group, Inc., 283 B.R. 549, 562 (9th Cir. BAP 2002)). Three showings must be made before a claim will be precluded: (i) an identity of the parties or their privies; (ii) an identity of the causes of action; and (iii) a final judgment on the merits. People Who Care v. Rockford Bd. of Educ., 68 F.3d 172, 177 (7th Cir.1995)(citing Barnett v. Stern, 909 F.2d 973, 979 (7th Cir.1990)). The fact that" }, { "docid": "4179317", "title": "", "text": "improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.”); Shoup v. Bell & Howell Co., 872 F.2d 1178, 1181 (4th Cir.1989) (“[F]or purposes of res judicata, a summary judgment has always been considered a final disposition on the merits.” (internal quotation marks omitted)). As the Supreme Court has explained, however, “it is no longer true that a judgment ‘on the merits’ [for purposes of Rule 41] is necessarily a judgment entitled to claim-preclusive effect.” Semtek Int’l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (emphasis added). As discussed above, the preclusive effect of a judgment enforcing a settlement agreement is determined by the intent of the parties as reflected by the terms of that agreement, and the Release did not bar anyone other than Mark Radcliffe from bringing suit against Purdue. Regardless of the procedural vehicle through which our decision enforcing the Release was entered, our decision simply did not broaden-the scope of the Release. See Am. Cyanamid Co. v. Capuano, 381 F.3d 6, 17 (1st Cir.2004) (“[A] dismissal with prejudice contained in a consent decree is not a ruling on the merits that applies to others under the law of claim preclusion.” (internal quotation marks and alterations omitted)). Accordingly, the district court erred by dismissing Qui Tam II as barred by principles of res judicata. III. We turn now to the contention urged by Purdue and the government that the district court’s dismissal can be affirmed because the action is prohibited by 31 U.S.C. § 3730(e)(4), the FCA’s “public disclosure” bar. Addressing that argument requires us to first determine which version of the statute applies to this case. A. The complaint focuses on conduct occurring between 1996 and 2005. At that time, the public-disclosure bar provided: No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media," }, { "docid": "14014717", "title": "", "text": "have jurisdiction of appeals from all final decisions of the district courts of the United States.” . Rule 54(b) permits the district court to \"direct the entry of a final judgment as to one or more but fewer than all of the claims or parties” but \"only upon an express determination [by the district court] that there is no just reason for delay and upon an express direction for the entry of judgment.” (Emphasis added.) Rule 54(b) further provides that [i]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. . The district court did not specify whether its dismissal was with or without prejudice. The Tenth Circuit recognizes a \"general rule [ ] that a party cannot obtain appellate jurisdiction where the district court has dismissed at least one claim without prejudice because the case has not been fully disposed of in the lower court.” Jackson, 462 F.3d at 1238 (emphasis added). But here, it is clear that the district court intended to dismiss the Bank’s contingent counterclaim with prejudice. In its decision expressly dismissing the Bank’s counterclaim, the district court indicated that its earlier decision had in fact \"finally adjudicated the Bank’s remaining counterclaim! 1,” because the Bank's counterclaim was contingent on the court’s imposing some liability on the Bank, and because the court’s decision disposing of all of Plaintiffs’ claims did not impose any liability on the Bank. Cf. Styskal v. Weld County Bd. of County Comm'rs, 365 F.3d 855, 858-59 (10th Cir.2004) (noting dismissal without prejudice means dismissal without barring litigant from refiling; citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001)). . Plaintiffs argue" }, { "docid": "17417594", "title": "", "text": "would be futile. See Thinket Ink Info. Res., 368 F.3d 1053 (explaining that dismissal without leave to amend is improper unless it is clear that the complaint could not be saved by any amendment). Further, contrary to the district court’s belief, dismissal with prejudice may, indeed, preclude the Center from asserting such claims in a separate proceeding under the doctrine of claim preclusion. See Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505-06, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (explaining that a dismissal that precludes refiling of the same claim in the same court is an “adjudication upon the merits” under Fed.R.Civ.P. 41(b)); Cent. Delta Water Agency v. United States, 306 F.3d 938, 952-53 (9th Cir.2002) (explaining that claim preclusion applies where the two suits arise out of the same transactional nucleus of facts). We therefore reverse the district court’s denial of the Center’s motion for leave to amend. CONCLUSION The Supreme Court explained in SUWA that a “failure to consider” certain issues while planning for the use and development of land resources is not a failure to take discrete agency action, as required for standing under § 706(1). Because the Center does not allege a failure to take a discrete agency action, we affirm the district court’s dismissal for lack of standing under § 706(1). At the same time, however, because it is not clear that amendment of the complaint would be futile, we reverse the district court’s denial of the Center’s motion for leave to amend and remand with instructions to permit the Center to amend its complaint. Each side shall bear its own costs on appeal. AFFIRMED in part, REVERSED in part, and REMANDED." } ]

[ { "docid": "14907989", "title": "", "text": "the evidence is insufficient because the DEA agent did not actually weigh the methamphetamine found, but instead, relying on the size of the containers found and the percentage of metham phetamine in samples taken, used an equation to calculate the weight. At trial the DEA agent estimated that there were over 500 grams of methamphetamine in the trailer. At the sentencing hearing, the district court found “that the government has sustained its burden of proof of sustaining a showing of somewhere in the neighborhood of 500 grams” of methamphetamine. The amount of drugs is not an element of the offense, but rather is a sentencing issue. United States v. Deisch, 20 F.3d 139, 148 (5th Cir.1994). The district court’s determination of drug quantity is reviewed for clear error, and need only be supported by a preponderance of the evidence. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.), cert. denied, — U.S. —, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996). After reviewing the DEA agent’s testimony, we are convinced that the district court did not err in finding that Dickey manufactured or possessed in excess of 100' grams of methamphetamine. Therefore, the district court’s imposition of the mandatory sentence of life imprisonment on counts one and two was not error. Felon in Possession of a Firearm Basing his argument on the recent Supreme Court decision in United States v. Lopez, — U.S. -, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Dickey contends that his conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), should be reversed because Congress exceeded its authority in passing the statute. Unfortunately for Dickey, our Circuit has settled this issue. In United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.1996), we held that we are bound by the Supreme Court’s decision in Scarborough v. United States, 431 U.S. 563, 575, 97 5.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977), that the felon in possession of a firearm statute is constitutional under the Commerce Clause. U.S. Const., art. I, § 8. Hearsay Dickey argues that the district court erred in allowing" } ]

[ { "docid": "16757841", "title": "", "text": "commerce. Furthermore, as the Fifth Circuit noted, courts have upheld the constitutionality of § 922(g)(1), the “felon in possession” statute, which shares the same jurisdictional element with § 922(g)(8). See, e.g., United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996). As we noted in Bell, the jurisdictional element required “the government ... to prove exactly what Lopez found missing under § 922(q).” 70 F.3d at 498. Therefore, the present statute, unlike the one at issue in Lopez, contains a jurisdictional element that brings it within Congress’ power under the Commerce Clause. Wilson asserts that even though the jurisdictional element is present, Lopez requires that a statute must specify a “substantial affect” on interstate commerce in order to be constitutional. This argument has been considered and rejected in the context of § 922(g)(1). In Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Supreme Court held that under 18 U.S.C.App. § 1202, the predecessor of § 922(g)(1), the Commerce Clause was satisfied as long as a “minimal nexus” to interstate commerce was shown. Accordingly, the government need only prove that the firearm in question moved in interstate com- meree at any time to meet its burden of proving that it was used “in or affecting commerce.” Bell, 70 F.3d at 498 (citing United States v. Lowe, 860 F.2d 1370, 1374 (7th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1639, 104 L.Ed.2d 155 (1989)); see also United States v. Chesney, 86 F.3d 564, 571 (6th Cir.), cert. denied, - U.S. -, 117 S.Ct. 2470, 138 L.Ed.2d 225 (1996). The discussion in Lopez of the “substantially affects” standard did not “revis[e] the government’s burden of proof on a jurisdictional element in criminal proceedings” and did not alter the fact that it need only meet the “minimal nexus” test enunciated in Scarborough. United States v. Cardoza, 129 F.3d 6, 11 (1st Cir.1997). Accordingly, under § 922(g)(1), the government need only prove “a prior movement of the firearm across state lines” to satisfy the jurisdictional element" }, { "docid": "3034606", "title": "", "text": "congressional Commerce Clause power. The statute was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” — U.S. at -, 115 S.Ct. at 1631. At the same time, the statute lacked any “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. Nor did the statute contain congressional findings to which the Court could look reflecting a congressional judgment that the possession of a gun in a school zone “substantially affected interstate commerce.” Id. at -, 115 S.Ct. at 1632. In United States v. Bell, we were quick to distinguish the felon-in-possession statute from the statute the Court found defective in Lopez, and thus to reject the defendant’s claim that he had pled guilty to violating an unconstitutional provision: Section 922(g)(1) does not suffer from the same infirmities. It contains an explicit requirement that a nexus to interstate commerce be established. It makes it unlawful for a felon “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any fire-arm_” Had Mr. Bell gone to trial, the government would have been required to prove that the weapon he sold to the undercover agent had traveled in interstate commerce. In other words, to secure a conviction under § 922(g)(1) the government had to prove exactly what Lopez found missing under § ■ 922(q)- 70 F.3d 495, 498 (7th Cir.1995); see also United States v. Lee, 72 F.3d 55, 58-59 (7th Cir.1995); United States v. Bradford, 78 F.3d 1216, 1222-23 (7th Cir.), cert. denied, — U.S. -, 116 S.Ct. 1581, 134 L.Ed.2d 678 (1996). Accord United States v. Sorrentino, 72 F.3d 294, 296-97 (2d Cir.1995); United States v. Gateward, 84 F.3d 670, 671-72 (3d Cir.), cert. denied, — U.S. -, 117 S.Ct. 268, 136 L.Ed.2d 192 (1996); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996) (per curiam); United States v. Turner, 77 F.3d 887, 889 (6th Cir.1996); United States v. Rankin, 64 F.3d 338, 339 (8th Cir.) (per curiam), cert. denied," }, { "docid": "7581295", "title": "", "text": "jurisdictional element. Section 922(g)(8) forbids any person subject to a protective order prohibiting family violence “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(8). By expressly requiring a nexus between the illegal firearm and interstate commerce, Congress has exercised its delegated power under the Commerce Clause to reach “a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Lopez, 514 U.S. at 561-63, 115 S.Ct. at 1631. We have upheld the constitutionality of a similar statutory provision forbidding the possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), which includes the exact same jurisdictional element. See United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996); United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989). As we recognized in Wallace, “[T]he words ‘affecting commerce’ are jurisdictional words of art, typically signaling a congressional intent to exercise its Commerce Clause power broadly, perhaps as far as the Constitution permits.” Our decisions in Rawls and Wallace necessitate the same result for § 922(g)(8). As such, we hold that “neither the holding in Lopez nor the reasons given therefor constitutionally invalidate” § 922(g)(8). See Rawls, 85 F.3d at 242. Additionally, Pierson contends that § 922(g)(8) is unconstitutional as applied to him. Specifically, Pierson asserts that the firearms which he possessed did not affect and were not possessed in commerce. As this court has previously held, the “in or affecting” commerce element can be satisfied if the illegally possessed firearm had previously traveled in interstate commerce. See Rawls, 85 F.3d at 242(citing Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977)). The Sturm Ruger rifle was manufactured in Connecticut and the Marlin shotgun was manufactured in New Hampshire. Thus, the firearms had to travel in interstate commerce in order for Pierson to possess .them in Texas. As we have previously noted, evidence that" }, { "docid": "22799760", "title": "", "text": "have reviewed the record and considered the legal arguments raised by the parties in their briefs to this court, and are satisfied that no reversible error has been committed, and that Rawls is-entitled to no relief, in connection with his claims regarding the counting of prior crimes and ineffective assistance of counsel. The remaining claims asserted by Rawls in his § 2255 motion have not been raised on appeal and are thus deemed abandoned. Hobbs v. Blackburn, 752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 117, 88 L.Ed.2d 95 (1985). For the foregoing reasons, the rulings of the district court culminating in the denial of Rawls’ § 2255 motion are, in all respects, AFFIRMED. . In United States v. Segeada, No. 95-40430, 74 F.3d 1237 (5th Cir. Nov. 30, 1995) (unpublished), we held, without discussion, that the defendant’s assertion that § 922(g)(1) was unconstitutional did not constitute reversible error. GARWOOD, Circuit Judge, with whom WIENER and EMILIO M. GARZA, Circuit Judges, join, specially concurring: I concur, with these added observations. If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before the charged possessor was even born, fortuitously traveled in interstate commerce. It is also difficult to understand how a statute construed never to require any but such a per se nexus could “ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” United States v. Lopez, — U.S. -, -, 115 S.Ct. 1624, 1631, 131 L.Ed.2d 626 (1995). However, the opinion in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), dealing with the predecessor to section 922(g), requires us to affirm denial of relief here. While Scarborough addresses only questions of statutory construction, and does not expressly purport to resolve any constitutional issue, the language of the opinion and the affirmance of the conviction there carry a strong enough implication of constitutionality to now bind us, as an" }, { "docid": "23249102", "title": "", "text": "concurring) (\"A statute that regulates non-commercial activity cannot be converted into, a statute that regulates commercial activity by dint of clever legislative craftwork.”), cert. denied, — U.S. -, 117 S.Ct. 2470, 138 L.Ed.2d 225 (1997). . See infra note 15 and accompanying text; Pierson, 139 F.3d at 503 (§ 922(g)(8) governs possession of firearms by individuals subject to protective orders in family violence cases); see also United States v. Hardy, 120 F.3d 76, 78 (7th Cir.1997) (finding § 922(u) constitutional); United States v. Snow, 82 F.3d 935, 939 (10th Cir.1996) (same); United States v. Miller, 74 F.3d 159, 159-60 (8th Cir.1996) (same); United States v. Hernandez, 85 F.3d 1023, 1031 (2nd Cir.1996) (finding § 922(k) constitutional); United States v. Diaz-Martinez, 71 F.3d 946, 953 (1st Cir.1995) (same). . United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996) (finding that the holding in Lopez does not invalidate the constitutionality of § 922(g)(1)); United States v. Gresham, 118 F.3d 258, 264 (5th Cir.1997) (reaffirming Rawls), cert. denied, — U.S. -, 118 S.Ct. 702, 139 L.Ed.2d 645 (1998); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996) (same), cert. denied, - U.S. -, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997); United States v. Dickey, 102 F.3d 157, 163 (5th Cir.1996) (same). We note that every other circuit that has addressed this issue has upheld the constitutionality of § 922(g)(1). See United States v. Williams, 128 F.3d 1128 (7th Cir.1997) (referencing decisions from each circuit court). . The cases interpreting § 922(g)(1) cite Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), as binding precedent, a case which concluded that the predecessor statute to § 922(g) required only a minimal nexus between the firearm and interstate commerce. We find this holding instructive, but not binding on our interpretation of § 922(j). Scarborough dealt with a felon-in-possession statute and was not mentioned in the Lopez opinion. Furthermore, prior panels have questioned the applicability of Scarborough if the constitutionality of § 922(g) was res nova, as the constitutionality of § 922(j) is today. See Rawls, 85 F.3d at 243" }, { "docid": "7581294", "title": "", "text": "possession of a firearm could only be prohibited under the Commerce Clause if such possession had a substantial effect on interstate commerce. Id. The Court noted that § 922(q) was a criminal statute that had nothing to do with commerce or any sort of commercial enterprise and was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Id. at 559-63, 115 S.Ct. at 1630-31. Therefore, the Court held that the intrastate possession of a firearm in a school zone did not substantially affect interstate commerce, and as such, could not be prohibited under the commerce power. Central to the Lopez Court’s holding was the fact that § 922(q) contained “no jurisdictional element which would ensure, through a case-by-case inquiry, that the firearm possession in question affects interstate commerce.” See Lopez, at 561-63, 115 S.Ct. at 1631. See also United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996)(upholding the constitutionality of§ 922(g)(1)). Unlike § 922(q), § 922(g)(8) contains a jurisdictional element. Section 922(g)(8) forbids any person subject to a protective order prohibiting family violence “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(8). By expressly requiring a nexus between the illegal firearm and interstate commerce, Congress has exercised its delegated power under the Commerce Clause to reach “a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Lopez, 514 U.S. at 561-63, 115 S.Ct. at 1631. We have upheld the constitutionality of a similar statutory provision forbidding the possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), which includes the exact same jurisdictional element. See United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996); United States v. Wallace, 889 F.2d 580, 583 (5th Cir.1989). As we recognized in Wallace, “[T]he words ‘affecting commerce’ are jurisdictional words of art, typically signaling" }, { "docid": "23249103", "title": "", "text": "(1998); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996) (same), cert. denied, - U.S. -, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997); United States v. Dickey, 102 F.3d 157, 163 (5th Cir.1996) (same). We note that every other circuit that has addressed this issue has upheld the constitutionality of § 922(g)(1). See United States v. Williams, 128 F.3d 1128 (7th Cir.1997) (referencing decisions from each circuit court). . The cases interpreting § 922(g)(1) cite Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), as binding precedent, a case which concluded that the predecessor statute to § 922(g) required only a minimal nexus between the firearm and interstate commerce. We find this holding instructive, but not binding on our interpretation of § 922(j). Scarborough dealt with a felon-in-possession statute and was not mentioned in the Lopez opinion. Furthermore, prior panels have questioned the applicability of Scarborough if the constitutionality of § 922(g) was res nova, as the constitutionality of § 922(j) is today. See Rawls, 85 F.3d at 243 (\"If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce,” but the language in Scarborough \"carries] a strong enough implication of constitutionality to now bind us_\") (Garwood, Wiener, Emilio M. Garza, J.J., specially concurring); Gresham, 118 F.3d at 265 n. 11 (noting the restrictive interpretation of the commerce power in Lopez, but finding that only a \"minimal nexus” between the firearm and interstate commerce is required under Rawls)’, Kuban, 94 F.3d at 973 n. 4 (same). In light of the uncertainty surrounding the application of Scarborough, we base our holding on the factors set out in Lopez. . 18 U.S.C. § 922(g) (1994). . See Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (\"[Section] 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.”); compare Rawls, 85 F.3d at 243 (\"[Section 922(g) ] does expressly require" }, { "docid": "10826134", "title": "", "text": "commerce. Id. at 561-62, 115 S.Ct. at 1631. Because 922(g) itself contains a jurisdictional element, and because the Supreme Court in Bass and Scarborough suggested that prior movement of the firearm in interstate commerce would suffice to meet that element, we have, in the wake of Lopez, repeatedly rejected Commerce Clause challenges to application of the felon-in-possession statute. See, e.g., United States v. Mitchell, 299 F.3d 632 (7th Cir.2002); United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir.2000), cert. denied, 531 U.S. 1174, 121 S.Ct. 1145, 148 L.Ed.2d 1008 (2001); Lewis, 100 F.3d at 50-53; United States v. Bell, 70 F.3d 495, 497-98 (7th Cir.1995). Lemons argues that Lopez effected far more of a sea change in the Supreme Court’s Commerce Clause jurisprudence than we have been willing to acknowledge. Within the Lopez framework, he reasons, Congress might be able to reach intrastate firearms possession when that possession has a commercial character and also has an explicit connection with or effect on interstate commerce. But section 922(g)(1), to the extent it merely requires a showing that the firearm moved across state lines at one point in time, is insufficient in Lemons’ view to ensure such a meaningful nexus to interstate commerce. And the undisputed facts in this case, he points out, establish only that the Sig Sauer pistol he possessed crossed into Wisconsin after its manufacture at some indeterminate moment in time — possibly years before it was discovered in his possession. That showing is insufficient, in Lemons’ view, to establish a genuine connection with or effect upon interstate commerce. See United States v. Kuban, 94 F.3d 971, 977-79 (5th Cir.1996) (DeMoss, J., dissenting in part), cert. denied, 519 U.S. 1070, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997); United States v. Chesney, 86 F.3d 564, 574-82 (6th Cir.1996) (Batchelder, J., concurring), cert. denied, 520 U.S. 1282, 117 S.Ct. 2470, 138 L.Ed.2d 225 (1997); United States v. Coward, 151 F.Supp.2d 544, 548-55 (E.D.Pa.2001), remanded on other grounds, 296 F.3d 176 (3rd Cir.2002); see also United States v. Bishop, 66 F.3d 569, 590-603 (3rd Cir.1995) (Becker, J., dissenting in part) (federal" }, { "docid": "12399001", "title": "", "text": "1194; Jones, 976 F.2d at 183. In the instant case, Gresham's prosecution does not constitute double jeopardy. Accordingly, the government is entitled to prosecute him under both statutes, and the threat of prosecution under one statute does not immunize him from prosecution under another. . See also United States v. Dickey, 102 F.3d 157, 163 (5th Cir.1996) (reaffirming Rawls); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996) (reaffirming Rawls), cert. denied, - U.S. -, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997). .The Rawls court acknowledged that this construction is at odds with the restrictive interpretation of the interstate commerce power endorsed in Lopez, but considered itself bound to follow the unambiguous language of Scarborough. 85 F.3d at 243 (Garwood, J., specially concurring). The Rawls interpretation of the \"in or affecting commerce” element of § 922(g)(1) is binding on this court. Therefore, the jurisdictional nexus provision of § 922(g)(1) requires only a \"minimal nexus” between the firearm and interstate commerce. . See, e.g., United States v. Walters, 87 F.3d 663, 667 (5th Cir.), cert. denied, U.S. -, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996); United States v. Dean, 59 F.3d 1479, 1484 (5th Cir.1995), cert. denied, -U.S.-, 116 S.Ct. 748, 133 L.Ed.2d 696 (1996), and cert. denied, U.S. -, 116 S.Ct. 794, 133 L.Ed.2d 742 (1996). . In a decision construing the predecessor to § 922(g)(1), the Second Circuit held that the jurisdictional nexus element of 18 U.S.C. § 1202(a) was not satisfied by proof that the process of manufacturing a firearm, including transactions in component parts, had traveled in or affected interstate commerce. See United States v. Travisano, 724 F.2d 341, 347-48 (2d Cir.1983). Travisano is incompatible with the plain language of the statute, however, and has been criticized for taking \"an unjustifiedly narrow view of the relevant commerce.” Mosby, 60 F.3d at 456. Accordingly, we decline to follow Travisano, and we align ourselves with those courts that have enforced the plain language of the statute. See Verna, 113 F.3d at 502; Mosby, 60 F.3d at 456. . These components included Pyrodex—an explosive powder—two batteries, and \"end caps.”" }, { "docid": "15349930", "title": "", "text": "held that the Act violated the Commerce Clause. Id. at 551-52, 115 S.Ct. at 1626. Prior to Lopez, this Court had held that the Government need only prove that extortionate activity has a minimal effect on interstate commerce to satisfy the Hobbs Act jurisdictional requirement. United States v. Alexander, 850 F.2d 1500, 1503 (11th Cir.1988); United States v. Jackson, 748 F.2d 1535, 1537 (11th Cir.1984). Castleberry contends the Supreme Court’s decision in Lopez alters the jurisdictional nexus, requiring the Government to prove a substantial effect on interstate commerce, and not simply a minimal effect. We disagree. Since Lopez was decided, this Court has not directly decided whether Lopez has changed “the measure of evidence necessary to support the interstate commerce element of a Hobbs Act prosecution.” See United States v. Frost, 77 F.3d 1319, 1320 (11th Cir.1996), judgment vacated on other grounds, - U.S.-, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997). However, this Court has rejected similar Lopez challenges in other contexts. United States v. Jackson, 111 F.3d 101 (11th Cir.1997)(Drag-Free School Zones Act did not exceed congressional authority under the Commerce Clause); United States v. McAllister, 77 F.3d 387 (11th Cir.)(finding constitutional a statute which makes possession of a firearm by a felon a criminal offense), cert. denied, - U.S.-, 117 S.Ct. 262, 136 L.Ed.2d 187 (1996); Cheffer v. Reno, 55 F.3d 1517 (11th Cir.l995)(holding that Freedom of Access to Clinic Entrances Act of 1994 was within Congress’ Commerce Clause power). In McAllister, the defendant, relying on Lopez, argued that Congress in enacting 18 U.S.C. § 922(g)(1), which makes it unlawful for a felon to “possess in or affecting commerce, any firearm or ammunition,” exceeded its Commerce Clause power by regulating the mere possession of a gun. We rejected defendant’s Lopez ’ argument mainly because the language of § 922(g)(1) contained a jurisdictional element (“possess in or affecting commerce, any firearm or ammunition,”), which the statute in Lopez, 18 U.S.C. § 922(q), did not contain. McAllister, 77 F.3d at 390. Like the statute involved in the McAllister case, the Hobbs Act contains a jurisdictional element. See 18 U.S.C. §" }, { "docid": "12398984", "title": "", "text": "bomb and thereby comply with the NFA, he could avoid prosecution by not engaging in the illegal activity. If Gresham chose to build an illegal pipe bomb and violate the law, therefore, he cannot subsequently complain that his prosecution for a violation of § 5861(d) offends the Due Process Clause. There is nothing “fundamentally unfair” about punishing a criminal, whether directly or indirectly, for engaging in illegal activity. Cf. Ardoin, 19 F.3d at 180 n. 4. III. Gresham next argues that the district court erred in denying his motion to dismiss count two of the indictment, charging possession of a firearm by a convicted felon in violation of § 922(g)(1), because that statute is unconstitutional. Citing United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Gresham claims the statute exceeds Congress’s authority to regulate interstate commerce. Furthermore, he argues that the indictment charging him with violations of § 922(g)(1) was defective in that it failed to charge every element of the offense. Neither claim has merit. A. The constitutionality of § 922(g)(1) is not open to question. In United States v. Rawls, 85 F.3d 240 (5th Cir.1996), we held that “neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).” Id. at 242. Accordingly, Gresham’s constitutional challenge is foreclosed by circuit precedent. B. Likewise, Rawls defeats Gresham’s challenge to the indictment. Arguing that Lopez permits the United States to regulate intrastate activities only if they “substantially affect” interstate commerce, Gresham claims that the indictment was defective because it charged him with possessing a firearm “in or affecting interstate commerce,” omitting the constitutional requirement of a “substantial effect.” Therefore, Gresham concludes, the indictment did not charge every essential element of the offense, and must be dismissed. Not so. In Rawls, we recognized that the “in or affecting commerce” element of § 922(g)(1) may be satisfied if the firearm possessed by a convicted felon had traveled in interstate commerce. See Rawls, 85 F.3d at 242-43. Citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), we further concluded" }, { "docid": "12398985", "title": "", "text": "§ 922(g)(1) is not open to question. In United States v. Rawls, 85 F.3d 240 (5th Cir.1996), we held that “neither the holding in Lopez nor the reasons given therefor constitutionally invalidate § 922(g)(1).” Id. at 242. Accordingly, Gresham’s constitutional challenge is foreclosed by circuit precedent. B. Likewise, Rawls defeats Gresham’s challenge to the indictment. Arguing that Lopez permits the United States to regulate intrastate activities only if they “substantially affect” interstate commerce, Gresham claims that the indictment was defective because it charged him with possessing a firearm “in or affecting interstate commerce,” omitting the constitutional requirement of a “substantial effect.” Therefore, Gresham concludes, the indictment did not charge every essential element of the offense, and must be dismissed. Not so. In Rawls, we recognized that the “in or affecting commerce” element of § 922(g)(1) may be satisfied if the firearm possessed by a convicted felon had traveled in interstate commerce. See Rawls, 85 F.3d at 242-43. Citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), we further concluded that the statute requires only a “minimal nexus” between the firearm and interstate commerce. Id. at 243-14 (Garwood, J., specially concurring). Consequently, the court held that the jurisdictional nexus was satisfied in Rawls because the firearm had traveled previously in interstate commerce. Likewise, in the instant case the government offered evidence to demonstrate that the firearm had traveled in interstate commerce, thereby satisfying the jurisdictional nexus. Therefore, given that the “in or affecting commerce” element of § 922(g)(1) requires only a “minimal nexus” between the firearm and interstate commerce, the indictment in the instant case was not defective for omitting the “substantial effect” requirement endorsed in Lopez. Gresham is entitled to no relief on this claim. IV. Gresham avers that the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon, under § 922(g)(1), because the evidence proved only that the component parts of the pipe bomb, rather than the bomb itself, had traveled in interstate commerce. We disagree. A. In a sufficiency challenge, we examine the evidence in" }, { "docid": "1298322", "title": "", "text": "instances of possession of sawed-off shotguns are for violent purposes only; instead, we refer only to those instances of possession made a crime under Texas law. For example, the Texas statute does not make criminal the possession of these weapons by collectors, members of the military or persons whose weapons are registered under the National Firearms Act. Tex. Penal Code § 46.05(b)-(d). These instances of possession are not even crimes, much less crimes of violence. . Serna also appeals his conviction notwithstanding his unconditional plea of guilty. He argues that in enacting § 922(g)(1), Congress exceeded the scope of its power under the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3. Serna concedes that this argument is foreclosed by our precedent. See United States v. Rawls, 85 F.3d 240, 242-43 (5th Cir.1996); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996); United States v. Gresham, 118 F.3d 258, 264 (5th Cir.1997) (\"The constitutionality of § 922(g)(1) is not open to question.”). He raises the argument in this appeal for the sole purpose of preserving it for further review. Accordingly, we also affirm his conviction. . The Texas statute under which Serna was convicted provides, in full: (a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells: (1) an explosive weapon; (2) a machine gun; (3) a short-barrel firearm; (4) a firearm silencer; (5) a switchblade knife; (6) knuckles; (7) armor-piercing ammunition; (8) a chemical dispensing device; or (9) a zip gun. (b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility. (c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended. (d) It is an affirmative defense to prosecution under this section that the actor’s conduct: (1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio;" }, { "docid": "16757840", "title": "", "text": "the statute challenged here passes constitutional muster. Unlike former § 922(q), § 922(g)(8) contains a jurisdictional element. The statute clearly prohibits certain individuals from “ship[ping] or tranport[ing] in interstate or foreign commerce, or possess[ing] in or affecting commerce, any firearm or ammunition” or “reeeiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” In United States v. Pierson, 139 F.3d 501 (5th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 220, - L.Ed.2d - (1998), the Fifth Circuit, in the only other appellate opinion addressing § 922(g)(8), held that “[b]y expressly requiring a nexus between the illegal firearm and interstate commerce, Congress has exercised its delegated power under the Commerce Clause to reach ‘a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.’ ” Pierson, 139 F.3d at 503 (quoting Lopez, 514 U.S. at 562, 115 S.Ct. 1624). We agree with this reasoning, and we similarly find that the jurisdictional element contained in § 922(g) establishes the requisite nexus with interstate commerce. Furthermore, as the Fifth Circuit noted, courts have upheld the constitutionality of § 922(g)(1), the “felon in possession” statute, which shares the same jurisdictional element with § 922(g)(8). See, e.g., United States v. Bell, 70 F.3d 495, 498 (7th Cir.1995); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.1996). As we noted in Bell, the jurisdictional element required “the government ... to prove exactly what Lopez found missing under § 922(q).” 70 F.3d at 498. Therefore, the present statute, unlike the one at issue in Lopez, contains a jurisdictional element that brings it within Congress’ power under the Commerce Clause. Wilson asserts that even though the jurisdictional element is present, Lopez requires that a statute must specify a “substantial affect” on interstate commerce in order to be constitutional. This argument has been considered and rejected in the context of § 922(g)(1). In Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), the Supreme Court held that under 18 U.S.C.App. § 1202, the predecessor of § 922(g)(1), the" }, { "docid": "3034609", "title": "", "text": "86 F.3d at 578 (Batchelder, J., concurring). Our court and others have also rejected the argument that Lopez requires the government to establish a more substantial connection to interstate commerce than proof of a prior movement of the firearm across state lines (often, as here, years before the defen dant was discovered in possession of it) supplies. In Bell, we concluded that Lopez east no doubt upon the continued validity of either Scarborough or Lowe, and thus we reaffirmed the view that “the mere movement of a weapon, at some, time, across state lines satisfied the commerce element of § 922(g)(1).” 70 F.3d at 498; see also Bradford, 78 F.3d at 1222-23. Accord United States v. Farnsworth, 92 F.3d 1001, 1006-07 (10th Cir.1996) (de minimis effect of defendant’s own actions on interstate commerce does not invalidate conviction); Nguyen, 88 F.3d at 821; United States v. McAllister, 77 F.3d 387, 390 (11th Cir.), cert. denied, - U.S. -, 117 S.Ct. 262, 136 L.Ed.2d 187 (1996); United States v. Bates, 77 F.3d 1101, 1104 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 215, 136 L.Ed.2d 149 (1996); United States v. Shelton, 66 F.3d 991, 992-93 (8th Cir.1995) (per curiam), cert. denied, — U.S. -, 116 S.Ct. 1364, 134 L.Ed.2d 530 (1996); Rawls, 85 F.3d at 242-43; Rankin, 64 F.3d at 339; Hanna, 55 F.3d at 1462. The Supreme Court’s own examination of felon-in-possession provisions suggests that our conclusion in Bell was correct. When the Supreme Court first construed the predecessor of section 922(g)(1) in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), it interpreted the statute not to reach the mere possession of firearms. Such a construction would have given the statute an extremely broad sweep, “mark[ing] a major inroad into a domain traditionally left to the States. . . .” Id. at 338, 92 S.Ct. at 518; see id. at 350, 92 S.Ct. at 524 (“[ajbsent proof of some interstate commerce nexus in each case, § 1202 dramatically intrudes upon traditional state criminal jurisdiction”). By interpreting the statute to require the firearm to have" }, { "docid": "12398999", "title": "", "text": "on the argument that the ban on machineguns rendered the registration requirements and criminal penalties of the NFA unconstitutional. Ardoin, 19 F.3d at 179. Therefore, Ardoin necessarily decided the constitutional issue as a prerequisite to rejecting the theory of implicit repeal. Id. . The authority of Congress to tax illegal activity is firmly established. See, e.g., Department of Revenue v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); Marchetti v. United States, 390 U.S. 39, 44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968). . See also United States v. Thomas, 15 F.3d 381, 382-83 (5th Cir. 1994) (affirming the denial of a motion for acquittal under § 5861(d) because defendant failed to demonstrate that pipe bombs cannot be registered). . Gresham offers no authority to support the proposition that registration of a pipe bomb is legally impossible, but he contends that registration of a pipe bomb is impossible as a practical matter. However true that may be, it does not undermine the constitutional basis of the statute. To the contrary, if possession of pipe bombs is not illegal per se, the registration requirement is reasonably related to the revenue purposes of the act and does not impose an unreasonable dilemma on Gresham. We express no opinion as to whether the prohibition against possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), would have been sufficient to render the registration of the pipe bomb legally impossible in this case, as Gresham does not suggest this alternative ground for our consideration. See United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995) (holding that the prohibition against possession of a firearm by a convicted felon does not render registration of such firearms “legally impossible”). . The mere fact that Gresham is exposed to prosecution for the same conduct under two different criminal statutes does not occasion a constitutional defect. The Constitution permits Congress to prohibit the same conduct under multiple statutes, provided the prosecution does not violate the Double Jeopardy Clause. See, e.g., Hunter, 73 F.3d at 262; Ross, 9 F.3d at" }, { "docid": "12399000", "title": "", "text": "the contrary, if possession of pipe bombs is not illegal per se, the registration requirement is reasonably related to the revenue purposes of the act and does not impose an unreasonable dilemma on Gresham. We express no opinion as to whether the prohibition against possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), would have been sufficient to render the registration of the pipe bomb legally impossible in this case, as Gresham does not suggest this alternative ground for our consideration. See United States v. Rivera, 58 F.3d 600, 601-02 (11th Cir.1995) (holding that the prohibition against possession of a firearm by a convicted felon does not render registration of such firearms “legally impossible”). . The mere fact that Gresham is exposed to prosecution for the same conduct under two different criminal statutes does not occasion a constitutional defect. The Constitution permits Congress to prohibit the same conduct under multiple statutes, provided the prosecution does not violate the Double Jeopardy Clause. See, e.g., Hunter, 73 F.3d at 262; Ross, 9 F.3d at 1194; Jones, 976 F.2d at 183. In the instant case, Gresham's prosecution does not constitute double jeopardy. Accordingly, the government is entitled to prosecute him under both statutes, and the threat of prosecution under one statute does not immunize him from prosecution under another. . See also United States v. Dickey, 102 F.3d 157, 163 (5th Cir.1996) (reaffirming Rawls); United States v. Kuban, 94 F.3d 971, 973 (5th Cir.1996) (reaffirming Rawls), cert. denied, - U.S. -, 117 S.Ct. 716, 136 L.Ed.2d 635 (1997). .The Rawls court acknowledged that this construction is at odds with the restrictive interpretation of the interstate commerce power endorsed in Lopez, but considered itself bound to follow the unambiguous language of Scarborough. 85 F.3d at 243 (Garwood, J., specially concurring). The Rawls interpretation of the \"in or affecting commerce” element of § 922(g)(1) is binding on this court. Therefore, the jurisdictional nexus provision of § 922(g)(1) requires only a \"minimal nexus” between the firearm and interstate commerce. . See, e.g., United States v. Walters, 87 F.3d 663, 667 (5th Cir.), cert." }, { "docid": "22057303", "title": "", "text": "credibility choices made in support of the verdict.” Id. (citations omitted). 2. Analysis For a violation of 18 U.S.C. § 922(g), the government must prove that: (1) the defendant previously had been convicted of a felony; (2) that the defendant possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce. See United States v. Gresham, 118 F.3d 258, 265 (5th Cir.1997) (citations omitted). Here Washington challenges the third prong. Washington concedes that the firearms at issue were manufactured outside of Texas and, therefore, traveled interstate prior to him possessing them in Texas. He argues, however, that proof, that the firearm previously crossed state lines is insufficient to meet the interstate commerce element of § 922(g)(1). In support of his position, Washington cites two Supreme Court cases: United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). In United States v. Daugherty, this circuit upheld a conviction of a felon in possession of a firearm after the government proved that the firearm at issue was manufactured in Egypt and imported through Tennessee before reaching Texas. 264 F.3d 513, 514 (5th Cir.2001), cert. denied, 534 U.S. 1150, 122 S.Ct. 1113, 151 L.Ed.2d 1007 (2002). The defendant argued that “the government failed to prove that he possessed a firearm ‘in and affecting’ interstate commerce” — essentially the same argument that Washington makes here. Id. at 518. The Daugherty court stated that “we repeatedly have said that evidence similar to that presented in Daugherty’s case suffices to maintain a § 922(g)(1) conviction.” Id. (citing United States v. Kuban, 94 F.3d 971 (5th Cir.1996)(affirming a § 922(g)(1) conviction where the weapon was manufactured in Belgium and possessed in Texas); United States v. Rawls, 85 F.3d 240 (5th Cir.1996) (affirming a § 922(g)(1) conviction where the weapon was manufactured in Massachusetts and possessed in Texas)). “Thus, his constitu-tionaT challenge to § 922(g) fails, because ‘the constitutionality of § 922(g) is not open to question.’ ” Id. (quoting United States v. DeLeon, 170 F.3d" }, { "docid": "12398986", "title": "", "text": "that the statute requires only a “minimal nexus” between the firearm and interstate commerce. Id. at 243-14 (Garwood, J., specially concurring). Consequently, the court held that the jurisdictional nexus was satisfied in Rawls because the firearm had traveled previously in interstate commerce. Likewise, in the instant case the government offered evidence to demonstrate that the firearm had traveled in interstate commerce, thereby satisfying the jurisdictional nexus. Therefore, given that the “in or affecting commerce” element of § 922(g)(1) requires only a “minimal nexus” between the firearm and interstate commerce, the indictment in the instant case was not defective for omitting the “substantial effect” requirement endorsed in Lopez. Gresham is entitled to no relief on this claim. IV. Gresham avers that the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon, under § 922(g)(1), because the evidence proved only that the component parts of the pipe bomb, rather than the bomb itself, had traveled in interstate commerce. We disagree. A. In a sufficiency challenge, we examine the evidence in the light most favorable to the verdict and reverse only if no rational trier of fact could have found that the evidence established each element of the offense beyond a reasonable doubt. In order to obtain a conviction under § 922(g)(1), the government must prove three essential elements: (1) that the defendant previously had been convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm traveled in or affected interstate commerce. See United States v. Fields, 72 F.3d 1200, 1211 (5th Cir.), cert. denied, - U.S. -, 117 S.Ct. 48, 136 L.Ed.2d 13 (1996). Gresham challenges only the third prong. B. Gresham claims that the evidence was insufficient to support his conviction because the evidence proved only that the component parts of the pipe bomb traveled in interstate commerce. Indeed, the evidence demonstrates that Gresham assembled the bomb in Texas and shipped it by private carrier from one Texas city to another. Because the pipe bomb itself did not travel in interstate commerce, therefore, Gresham contends that the evidence was" }, { "docid": "23249104", "title": "", "text": "(\"If the matter were res nova, one might well wonder how it could rationally be concluded that mere possession of a firearm in any meaningful way concerns interstate commerce,” but the language in Scarborough \"carries] a strong enough implication of constitutionality to now bind us_\") (Garwood, Wiener, Emilio M. Garza, J.J., specially concurring); Gresham, 118 F.3d at 265 n. 11 (noting the restrictive interpretation of the commerce power in Lopez, but finding that only a \"minimal nexus” between the firearm and interstate commerce is required under Rawls)’, Kuban, 94 F.3d at 973 n. 4 (same). In light of the uncertainty surrounding the application of Scarborough, we base our holding on the factors set out in Lopez. . 18 U.S.C. § 922(g) (1994). . See Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (\"[Section] 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.”); compare Rawls, 85 F.3d at 243 (\"[Section 922(g) ] does expressly require some nexus to interstate commerce, thus importantly reflecting that Congress was exercising that delegated power and not merely functioning as if it were the legislative authority of a unitary state.”) (Garwood, Wiener, Emilio M. Garza, J.J., specially concurring). . See United States v. Monteleone, 77 F.3d 1086, 1091 (8th Cir.1996) (“[S]ection 922(d) addresses the disposal of firearms, which is an inherently commercial activity.”); United States v. Michael R., 90 F.3d 340, 344 (9th Cir.1996) (\"[Section 922(x) ], possession of a handgun by a juvenile, as a general matter, could have a substantial effect on interstate commerce.”). . Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, § 901(a)(1) (1968). . H.R.Rep. No. 681, 101st Cong., 2d Sess., pt. 1, at 106 (1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6510; see also United States v. Cruz, 50 F.3d 714, 718 (9th Cir.1995) (discussing the legislative history of § 922(j)); United States v. Honaker, 5 F.3d 160, 161-62 (6th Cir.1993) (same), cert. denied, 510 U.S. 1180, 114 S.Ct. 1226, 127 L.Ed.2d 571 (1994). . Lopez," } ]

[ { "docid": "12819074", "title": "", "text": "three-year limitations period of the Illinois securities law. It submits that such reconsideration is required in light of the Supreme Court’s holding in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). We must decline this invitation. This court has had several occasions to consider whether Hochfelder (requiring the element of scienter in a Rule 10b-5 claim) mandates the application of the Illinois five-year statute of limitations for common law fraud actions instead of the three-year period of the Illinois securities law. This court has consistently held in post-Hoch-felder cases that the three-year statute of limitations of the Illinois securities law continues to apply. Indeed, as long ago as Cahill v. Ernst & Ernst, 625 F.2d 151, 156 (7th Cir.1980), a post-Jhochfelder case, we noted that a concern for predictability and certainty in the law required that we hold a steady course with respect to this statute of limitations issue: “[Pjarties to litigation within this circuit have become accustomed since 1972 to our adoption of state securities law limitations in section 10(b) cases. For us to change the applicable limitation period without good and substantial cause would add an unnecessary uncertainty to the prosecution of federal claims under section 10(b).” Those concerns are even stronger seven years later. The principle of stare decisis requires this result. The bench and bar of the Seventh Circuit have relied on a fifteen-year history of applying the Illinois securities law statute of limitations to federal securities law claims arising in Illinois. We are aware that there is a significant degree of confusion throughout the country regarding the appropriate methodology for selecting the appropriate state statute of limitations in securities cases. The selection of a statute of limitations is primarily a legislative task. When, as here, that task is left by default to the judiciary to accomplish by finding the most closely analogous state statute, such diversity in approach is inevitable. However, until the Congress sees fit to remedy the situation by the enactment of a uniform limitations period, we shall maintain our present course. In our view, it" } ]

[ { "docid": "23125921", "title": "", "text": "(Wyatt, J.); Thiele v. Shields, 131 F.Supp. 416, 419 (S.D.N.Y.1955) (Kaufman, J.). 401 F.2d at 867. Since fraud as well as negligence has been alleged and the section 10(b) claim established, plaintiffs’ section 17 claim will be allowed to stand. Similarly, we need not deal with defendants’ contention that section 17 has a privity requirement. Where section 17 has been concurrently pleaded with a sufficient Rule 10b-5 claim, as here, courts forbear to rule on the sufficiency of the section 17 claim. 6 Loss, Securities Regulation 3913 (Supp. 2d ed. 1969). Ill Every defendant appealing here has contended that the statutory period within which to bring a Rule 10b — 5 action is three years. Each has further contended that this period expired before the plaintiffs’ filed their various complaints. Since the defendants stand in different factual circumstances, they must be dealt with separately. This Circuit determined in Parrent v. Midwest Rug Mills, 455 F.2d 123 (7th Cir. 1972), that Rule 10b-5 and section 17 actions arising in Illinois were subject to a three year statute of limitations. Since no federal provision limits Rule 10b-5 actions, the Parrent court looked to the law of the forum state, Illinois, for the statute of limitations which best effectuated the policies of Rule 10b-5 and section 17. This was held to be the three year limitation found in section 13 of the Illinois Securities Law. The plaintiffs contend that Illinois’ five year statute of limitations for fraud applies. Judge Decker applied this limitation at an earlier stage in this litigation before the Parrent case was decided. Subsequently Judge McMillen, succeeding Judge Decker in this action, found the three year limitation applicable on the basis of Parrent. The plaintiffs urged that the five year limitation is “the law of the case.” They also argued that Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (Í971), precluded retrospective application of Parrent. The doctrine of the law of the case did not bind Judge McMillen to apply the five year limitations period. Federal rule of the case doctrine is a rule" }, { "docid": "3197696", "title": "", "text": "believed he was making no investment at all, he neither would have invested (transaction causation) nor suffered a loss (loss causation) had the facts been as he believed them to be. Accordingly, Count II adequately alleges loss causation, and PaineWebber’s motion to dismiss on this score must be denied. 2. The Claims Are Not Barred by the Statute of Limitations PaineWebber’s last argument for dismissal of the complaint is that plaintiffs claims are time-barred. PaineWebber first argues that the Supreme Court’s ruling in Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987), mandates a change in the limitations period for § 10(b) and Rule 10b-5 claims from three years to one. It then asserts that, although some of Forsberg’s allegedly unlawful acts occurred within one year of the filing of the original complaint — the Ventrex purchases occurred on or about August 13 and September 11, 1985 and the complaint was filed on September 4, 1986 — the amended complaint, dated June 1, 1988, does not relate back to the date of the original and is thus barred by the one year limitations period. In Norris v. Wirtz, 818 F.2d 1329 (7th Cir.1987), the Seventh Circuit reaffirmed that, in this circuit, § 10(b) and Rule 10b-5 claims take their limitations period from analogous state law. See also Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 126 (7th Cir.1972). In Illinois, the relevant provision is the Illinois Securities Act, Ill.Rev. Stat. ch. 121-V2, 11137.13 D, which provides for a three year limitations period. Although the Court in Norris opined that it would have made more sense for federal courts to have looked to express federal rights of action in choosing a limitations period for § 10(b) and Rule 10b-5’s implied cause of action, “it is too late for an inferi- or court to turn back the clock.” Norris v. Wirtz, 818 F.2d at 1333. PaineWebber insists, however, that it is not too late, pointing to the Supreme Court’s ruling in Agency Holding Corp., issued a month after Norris, that “the federal policies" }, { "docid": "21581413", "title": "", "text": "the discovery of facts constituting the viola tion, and in no event more than three years after the violation. Although plaintiffs brought this action more than three years after the sale of securities (the sale occurred on or around December 7, 1983, and this suit was filed on July 13, 1987), the state limitations period, unlike the federal limitations period with its three-year absolute bar, may be tolled by certain instances of fraud. The district court, applying the three-year Illinois statute and the federal tolling doctrine, rejected Arthur Young’s claim that the action was time-barred, holding that the complaint raised factual issues as to whether the statute should be tolled and when the limitations period began to run. Since this case was argued, the Seventh Circuit has ruled on the issue raised by Arthur Young in its cross-appeal. In Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385 (7th Cir.1990), we expressly overruled our prior precedents to hold that actions under section 10(b) and rule 10b-5 are governed by the limitations period found in section 13 of the Securities Act of 1933: one year after the plaintiff discovers the facts constituting the violation and in no event more than three years after the violation. We left open all questions having to do with retroactive application of our decision in Short. Id. at 1038-39. Although application of section 13 would bar plaintiffs’ suit in the present case, we do not reach the issue of whether Short applies retroactively because plaintiffs have failed to state a claim for aiding and abetting. B. Aiding and Abetting Liability Under Section 10(b) and Rule 10b-5 This circuit recognizes a cause of action for aiding and abetting violations of section 10(b) and rule 10b-5. E.g., DiLeo v. Ernst & Young, 901 F.2d 624, 628 (7th Cir.1990); Latigo Ventures v. Laventhol & Horwath, 876 F.2d 1322 (7th Cir.1989); see also Schlifke v. Seafirst Cory., 866 F.2d 935, 946 (7th Cir.1989) (citing cases). At the same time, this circuit has also questioned the propriety of implying such a cause of action from these securities provisions, see Renovitch v." }, { "docid": "16292654", "title": "", "text": "it cannot determine that the plaintiffs have not pleaded a claim cognizable under the securities laws from the materials presently before the court. As noted in Tober v. Charnita, Inc. 58 F.R.D. 74, 86 (M.D.Pa.1973), an action raising a similar claim, “the issues to be decided are factual and would require a great deal of discovery and perhaps an evidentiary hearing before the record would be sufficient to support a finding of fact [on any motion the defendants might bring to dismiss or grant summary judgment].” With the possible exception of Bubula, supra, in all the cases cited by either side the courts considered the representations, whether oral or written, made by the defendants before determining the nature of the transaction. Since Count I raises a genuine issue of material fact, it cannot be dismissed upon the record presently before the court. III. The Statute of Limitations for Count I Since there is no express statute of limitations for the federal securities laws, the parties agree that the controlling statute of limitations is § 13(D) of the Illinois Securities Act, Ill.Rev.Stat. ch. 121V2 § 137.-13 D. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972). The Illinois statute of limitations provides for a three-year period, which would bar those plaintiffs who purchased their lots prior to June 3, 1973. However, the plaintiffs assert, and the defendants assent to the proposition that the statute of limitations is subject to equitable tolling where fraud was either affirmatively concealed, or could not be discovered despite due diligence. Tomera v. Galt, 511 F.2d 504 (7th Cir. 1975); Hochfelder v. Midwest Stock Exchange, 503 F.2d 364 (7th Cir. 1974). The plaintiffs assert that there has been concealment of the fraud, and note that in any case the failure of the defendants to perform according to their representations could not have been discovered until well after 1973. It is self-evident that fraudulent promises to build certain amenities in the future cannot be detected at the time of the representations. The plaintiffs concede that the complaint currently does not contain allegations sufficient to assert" }, { "docid": "23125926", "title": "", "text": "F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). They looked to the limitations period of the state action which was most like section 10(b) or Rule 10b-5. Ruder, Limitations on Civil Liability Under Rule 10b-5, 1972 Duke L.J. 1125, 1142-50 (1972); Note, Parrent v. Midwest Rug Mills, Inc.: Statute of Limitations Under Section 10(b), 68 Nw. U.L.Rev. 162 (1973). It is apparent from a reading of section 12 of the Illinois Securities Law (Ill.Rev.Stat., ch. I21V2, § 137.12), for which section 13 supplies the three year limitation, that it closely parallels Rule 10b-5 and a study of the Illinois Securities Laws reveals a nearly identical aim. Parrent, supra, 455 F.2d at 127. Circuits which do not apply Blue Sky limitations either have higher standards for proof of scienter or dissimilar state securities statutes. Martin, Statute of Limitations in 10b-5 Actions: Which State Statute is Applicable?, 29 Bus.L. 443 (1974). Clearly, application of the Illinois Blue Sky limitations period was foreshadowed, and in any event Parrent did not constitute an overruling of any clear past precedent of the Seventh Circuit. Furthermore, following the rule in Parrent is not detrimental to the operation of Rule 10b-5 in this case inasmuch as the plaintiffs may and do call upon the mitigating doctrine of tolling. Equitable tolling is always available where fraud has concealed the wrong done. See part IV, infra. Since Chevron does not operate here, Parrent’s three year limitations period applies retroactively. IV The defendants have challenged the plaintiffs’ reliance on the theory of equitable tolling on two grounds: (1) that tolling does not apply to claims based on negligence and (2) that the allegations of the complaints are insufficient to toll the limitations period. A Rodman & Renshaw, named a defendant along with six other brokerage houses in the original complaint of February 19, 1969, had employed Harris Nagorsky, one of the parties indicted in August 1967. During the period he was with Rodman, Nagorsky participated in the planning of the manipulation scheme, but he left in October 1965 before the scheme had" }, { "docid": "12599509", "title": "", "text": "section ,.. after three years from the date of sale ... Ill.Rev.Stat. ch. 12iy2, ¶ 137.13 D (Smith-Hurd I960). The statute begins to run, “on the date the sale of the instrument is completed.” Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1005 (7th Cir.1984). For purposes of determining the date upon which the limitations period is triggered under ¶ 137.13 D, Illinois courts have defined the “date of sale” as the date on which the defendant acquires a legal interest in the alleged securities and the date when the rights of the parties to the transaction are fixed. See Frantzve v. Joseph, 150 Ill.App.3d 850, 104 Ill.Dec. 133, 502 N.E.2d 396 (1986); James v. Erlinder Manufacturing Co., 80 Ill.App.3d 4, 35 Ill. Dec. 275, 398 N.E.2d 1225 (1979); Levine v. Unruh, 99 Ill.App.2d 94, 240 N.E.2d 521 (1968); Silverman v. Chicago Ramada Inn, Inc., 63 Ill.App.2d 96, 211 N.E.2d 596 (1965). In this case the “date of sale” which triggered the running of the three year statute of limitations occurred on July 1, 1978; this was the day upon which the plaintiff exchanged her stock for a promissory note issued by the corporation. Since the plaintiff’s original complaint was filed on July 13, 1984, over six years after the statute of limitations began running, her action is clearly time barred unless her complaint alleges facts sufficient to invoke rules of equitable tolling which would operate to delay the 1978 running of the limitations period. A. Prior to a line of decisions in the Supreme Court holding that when a federal court borrows a state’s statute of limitations it takes the tolling rules as well, the law of this circuit was clear that federal common law determined the circumstances which would equitably toll a borrowed limitations period. Tornera v. Galt, 511 F.2d 504, 509 (7th Cir.1975); Sperry v. Barggren, 523 F.2d 708, 710 (7th Cir.1975); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-127 (7th Cir.1972). Since then, however, some doubt exists as to whether both state and federal tolling rules operate to toll the borrowed limitations period, or" }, { "docid": "11461216", "title": "", "text": "to the trial court). The silence of the Illinois courts on ¶ 137.13 D, however, does not mean that Illinois law has nothing to say on this matter. On the contrary, the Illinois courts and legislature have consistently provided for the tolling of limitations periods in the presence of fraudulent concealment, see, e.g., IH.Rev.Stat. ch. 110, II13-215; so much so, in fact, that the Seventh Circuit once stated in dicta that equitable tolling did apply to old 11137.13 D. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 128 n. 11 (7th Cir.1972). This suggests that the rule in Illinois is that statutory or common law tolling will apply to a cause of action unless the statute expressly provides otherwise. See Sommer v. United Savings Life Insurance Co., 128 Ill.App.3d 808, 819, 84 Ill.Dec. 77, 471 N.E.2d 606 (1984). Since old 11137.13 D established a three-year limitations period without expressly precluding equitable tolling, this court concludes that such tolling was available prior to the amendments. Of course, to obtain the benefits of the tolling rule, the plaintiffs must adequately plead their entitlement to it. Under federal law, a plaintiff seeking to rely on equitable tolling must show either his own due diligence or the defendant’s fraudulent concealment, see Teamsters Local 282 Pension Trust Fund v. Angelos, 815 F.2d 452, 456 (7th Cir.1987); Sperry v. Barggren, 523 F.2d 708, 711 (7th Cir.1975); but under Illinois law, he must show both, see Zagar v. Health & Hospitals Governing Commission of Cook County, 83 Ill.App.3d 894, 898, 39 Ill.Dec. 112, 404 N.E.2d 496 (1980). The defendants maintain the plaintiffs have alleged neither, and although the plaintiffs insist that they have pleaded Litwin’s fraudulent concealment, they concede that they have not alleged their own due diligence. This concession would seem to doom their state law claims. For a number of reasons it does not. First, it is worth noting that the defendants relied on federal cases alone in arguing that the plaintiffs had not pleaded facts supporting equitable tolling. Thus, the plaintiffs may have been lulled into thinking that they had no need to" }, { "docid": "12819073", "title": "", "text": "federal securities law actions in Illinois is the three-year statute of limitations of the Illinois securities law. 624 F.Supp. at 962. The district court also held that the limitations period should not be tolled on the facts of this case. The United States District Court for the Eastern District of New York in the Katsaros litigation had already-established the Fund’s lack of due diligence in making a pre-loan investigation of Ban-corporation and the Bank. Id. at 964-65. Collateral estoppel, held the district court, thus prevented the fund from asserting in this action that it had exercised the due diligence that is a predicate for equitable tolling of the statute of limitations. Id. at 965. The district court also declined to exercise pendent jurisdiction over appellant’s common law fraud claim and dismissed it for lack of subject matter jurisdiction. Id. II The Applicable Statute of Limitations The Fund invites us to reconsider this court’s holding in Parrent, 455 F.2d 123, that the applicable statute of limitations in a federal securities law claim in Illinois is the three-year limitations period of the Illinois securities law. It submits that such reconsideration is required in light of the Supreme Court’s holding in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). We must decline this invitation. This court has had several occasions to consider whether Hochfelder (requiring the element of scienter in a Rule 10b-5 claim) mandates the application of the Illinois five-year statute of limitations for common law fraud actions instead of the three-year period of the Illinois securities law. This court has consistently held in post-Hoch-felder cases that the three-year statute of limitations of the Illinois securities law continues to apply. Indeed, as long ago as Cahill v. Ernst & Ernst, 625 F.2d 151, 156 (7th Cir.1980), a post-Jhochfelder case, we noted that a concern for predictability and certainty in the law required that we hold a steady course with respect to this statute of limitations issue: “[Pjarties to litigation within this circuit have become accustomed since 1972 to our adoption of state securities law limitations" }, { "docid": "12819080", "title": "", "text": "estoppel, there are no genuine issues of material fact. In both the Katsaros litigation and the present litigation, the standard to which the Trustees of the Fund are held is that of an ordinary prudent person. In Katsaros the Court determined that the Trustees had not lived up to that standard. For the foregoing reasons, we hold that the district court properly applied the doctrine of collateral estoppel and properly granted summary judgment for the defendants based on the statute of limitations. Affirmed. . The appellees are former directors of Bancor-poration and the law firm Jenner & Block. . Andrews v. Heinhold Commodities, Inc., 771 F.2d 184, 186 (7th Cir.1985) (\"Because the federal statutes giving rise to Andrews’ claim contain no express statute of limitations, federal courts must borrow the applicable statute from analogous state law, which in Illinois is the three-year period contained in the Illinois securities laws.”) (citing Parrent v. Midwest Rug Mills, 455 F.2d 123 (7th Cir.1972)); Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1004 (7th Cir.1984) (\"And this Court and the district courts have repeatedly held that the appropriate statute of limitations is the three-year limitation imposed by Ill.Rev.Stat. ch. 121 / § 137.13 D (1977).’’) (citing Parrent, 455 F.2d at 126); see Peoria Union Stockyards Co. Retirement Plan v. Penn Mut. Life Ins. Co., 698 F.2d 320, 326 (7th Cir. 1983) (”[T]he parties agree, as they must, ... [that ‘the three-year statute of limitations in the Illinois Securities Law’] applies to both the state and federal securities law claims.”) (citing Parrent, 455 F.2d 123); Cahill v. Ernst & Ernst, 625 F.2d 151, 153 (7th Cir.1980)); Nemkov v. O'Hare Chicago Corp., 592 F.2d 351, 355 (7th Cir.1979) (“Illinois’ three year statute of limitations is applicable to claims for damages under § 10(b) [of the Securities Exchange Act of 1934] and Rule 10b-5 [and to claims for damages under § 17(a) of the Securities Act of 1933].’’) (citing Hupp v. Gray, 500 F.2d 993, 996 (7th Cir.1974); Parrent, 455 F.2d at 125-27). . Collateral estoppel is a judicially-created doctrine that is properly applied when an issue" }, { "docid": "3423819", "title": "", "text": "is implied under section 10(b) of the Securities Exchange Act. See Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S 6, 92 S.Ct. 165, 30 L.Ed.2d 128 (1971); Rekant v. Desser, 425 F.2d 872 (5th Cir. 1970). The Act, however, does not proscribe a period of limitations for an action, nor is there a general federal statute of limitations. See, e. g., Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972). As a result, the appropriate limitation act in the forum state of Georgia controls. International Union v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966). Plaintiffs contend that Georgia’s four-year limitations period for actions requesting relief upon the ground of fraud is most applicable. Ga.Code § 3-1002. Defendants claim that the most applicable Georgia limitations statute is Ga.Code § 97-114, Georgia’s blue sky law two-year limitation period. In at least two prior decisions of this court, Dudley v. Southeastern Factor & Finance Corp., 57 F.R.D. 177 (N.D.Ga.1972), and Banks v. American Capital Corp., Civ. No. 12998 (N.D.Ga.1972), it was held that the Georgia fraud statute of limitations period of four years was applicable to rule 10b-5 actions. The defendants, however, urge this court to abandon these holdings and instead apply the shorter Georgia blue sky law limitation period. In light of a recent decision by the Fifth Circuit in Hudak v. Economic Research Analysts, Inc., 499 F.2d 996 (5th Cir. 1974), this court feels compelled to reexamine the question. The standard for determining which period of limitation to apply is that it should be “one which best effectuates the federal policy at issue.” Charney v. Thomas, 372 F.2d 97, 100 (6th Cir. 1967). The more recent decisions favoring the blue sky limitation period have utilized a “resemblance test” in adopting a period of limitations. See Einhorn & Feldman, Choosing A Statute of Limitations In Federal Securities Actions, 25 Mercer L.Rev. 497, 503 (1974). Thus, a recent decision in the Seventh Circuit, Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972), found the Illinois three-year blue sky" }, { "docid": "23322378", "title": "", "text": "Cir.1975). A. Both parties agree that because there is no general federal statute of limitations and because there is no provision concerning limitations in either § 17 of the Securities Act of 1933 or § 10 of the Securities Exchange Act of 1934, the appropriate limitations act in the forum state of Illinois controls. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125 (7th Cir.1972). And this Court and the district courts have repeatedly held that the appropriate statute of limitations is the three-year limitation imposed by Ill.Rev.Stat. ch. 121V2 § 137.13 D (1977). Id. at 126; see Cahill v. Ernst & Ernst, 625 F.2d 151, 153 (7th Cir.1980) (citing cases). The appellant nevertheless asserts that, because the appellees fraudulently concealed the cause of action from her, the five years after discovery limitation of the predecessor of Ill.Rev.Stat. ch. 110 § 13-215 (1982) should apply. The appellant misunderstands the effect of an allegation of fraudulent concealment on the running of the statute of limitations in federal securities violation cases. The usual three-year limitation still applies. The federal doctrine of equitable tolling is available, however, to determine when the limitations period begins to run. Tomera v. Galt, 511 F.2d 504, 509 (7th Cir.1975) (federal doctrine of equitable tolling applies in 10b-5 actions); Sperry v. Barggren, 523 F.2d 708, 710 (7th Cir.1975) (equitable tolling doctrine is read into every federal statute of limitations including state statutes adopted by federal law). Equitable tolling applies in two situations. First, the doctrine will toll the running of the statute of limitations where the fraud goes undiscovered even though the defendant does nothing to conceal it. The plaintiff, however, must exercise due diligence in attempting to uncover the fraud. In the second situation in which equitable tolling applies, the fraud goes undiscovered because the defendant has taken positive steps after commission of the fraud to keep it concealed. This type of fraudulent concealment tolls the limitations period until actual discovery by the plaintiff. Tomerd v. Galt, 511 F.2d at 510. The district court in this case found that the appellant had alleged neither diligence on" }, { "docid": "3197697", "title": "", "text": "back to the date of the original and is thus barred by the one year limitations period. In Norris v. Wirtz, 818 F.2d 1329 (7th Cir.1987), the Seventh Circuit reaffirmed that, in this circuit, § 10(b) and Rule 10b-5 claims take their limitations period from analogous state law. See also Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 126 (7th Cir.1972). In Illinois, the relevant provision is the Illinois Securities Act, Ill.Rev. Stat. ch. 121-V2, 11137.13 D, which provides for a three year limitations period. Although the Court in Norris opined that it would have made more sense for federal courts to have looked to express federal rights of action in choosing a limitations period for § 10(b) and Rule 10b-5’s implied cause of action, “it is too late for an inferi- or court to turn back the clock.” Norris v. Wirtz, 818 F.2d at 1333. PaineWebber insists, however, that it is not too late, pointing to the Supreme Court’s ruling in Agency Holding Corp., issued a month after Norris, that “the federal policies that lie behind RICO and the practicalities of litigation make the selection of the four-year statute of limitations for Clayton Act actions, 15 U.S.C. § 15b, the most appropriate limitations period for RICO actions.” 107 S.Ct. at 2767. According to PaineWebber, Agency Holding Corp. authorizes — no, mandates — a single limitations period for § 10(b) and Rule 10b-5 claims, and that this period should be the one-year period set forth in §§ 9(e), 18(c), and 29(b) of the Securities Exchange Act of 1934 and § 13 of the Securities Act of 1933. PaineWebber further notes that, in In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3d Cir.1988), the Third Circuit sitting en banc relied on Agency Holding Corp. in determining that the one-year limitations period established by Congress for express rights of action under the securities laws should apply as well to § 10(b) and Rule 10b-5 claims. The reasoning of the Third Circuit in Data Access Systems is compelling. Its reasoning in Hill v. Equitable Trust Co., 851 F.2d 691 (3d" }, { "docid": "12599508", "title": "", "text": "and do not decide whether the plaintiff’s RICO count alleged a pattern of racketeering activity. Accordingly, we affirm the district court’s dismissal of the federal claims as time barred and the consequent dismissal of her pendent state law claim for want of jurisdiction. I. The Securities Fraud Claim Because there is no explicit federal statute of limitations for private actions under 10b-5, the rule in the Seventh Circuit is that the statute of limitations applicable to the state blue sky law must be borrowed to determine the relevant limitation period. Andrews v. Heinold Commodities Inc., 771 F.2d 184, 186 (7th Cir.1985); Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1004 (7th Cir.1984); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-27 (7th Cir.1972); but see Norris v. Wirtz, 818 F.2d 1329, 1332 (7th Cir.1987); In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3rd Cir.1988). In this case the period is three years. The applicable Illinois blue sky statute provides in relevant part that: [n]o action shall be brought for relief under this section ,.. after three years from the date of sale ... Ill.Rev.Stat. ch. 12iy2, ¶ 137.13 D (Smith-Hurd I960). The statute begins to run, “on the date the sale of the instrument is completed.” Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1005 (7th Cir.1984). For purposes of determining the date upon which the limitations period is triggered under ¶ 137.13 D, Illinois courts have defined the “date of sale” as the date on which the defendant acquires a legal interest in the alleged securities and the date when the rights of the parties to the transaction are fixed. See Frantzve v. Joseph, 150 Ill.App.3d 850, 104 Ill.Dec. 133, 502 N.E.2d 396 (1986); James v. Erlinder Manufacturing Co., 80 Ill.App.3d 4, 35 Ill. Dec. 275, 398 N.E.2d 1225 (1979); Levine v. Unruh, 99 Ill.App.2d 94, 240 N.E.2d 521 (1968); Silverman v. Chicago Ramada Inn, Inc., 63 Ill.App.2d 96, 211 N.E.2d 596 (1965). In this case the “date of sale” which triggered the running of the three year statute of limitations occurred on July 1, 1978;" }, { "docid": "21558978", "title": "", "text": "limitations for claims founded on section 10(b) of the ’34 Act and rule 10b-5 with the limitations periods statutorily prescribed for private causes of action expressly provided by the ’34 Act. See 15 U.S.C. §§ 78i(e) and 78r(c). First adopted by the Third Circuit, see In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3d Cir.) (in banc), cert. denied, 488 U.S. 849, 109 S.Ct. 131, 102 L.Ed.2d 103 (1988), and more recently by the Seventh Circuit, see Short v. Belleville Shoe Manufacturing Co., 908 F.2d 1385 (7th Cir.1990), this “one-year/three-year” formulation bars any suit filed more than one year after discovery of the fraud or more than three years after the violation. The Third Circuit has applied the federal limitations period retroactively, Hill v. Equitable Trust Co., 851 F.2d 691 (3d Cir.1988), cert. denied, 488 U.S. 1008, 109 S.Ct. 791, 102 L.Ed.2d 782 (1989), although the ruling had no adverse consequence for the plaintiffs since their claims would have been barred under the equivalent limitations period of applicable state law. Like the Seventh Circuit, see Short, 908 F.2d at 1390; Robin v. Arthur Young & Co., 915 F.2d 1120, 1123 (7th Cir.1990), we have yet to pass on the question. Because plaintiffs 10b-5 claims were properly dismissed under either approach, the panel in Ceres was not faced with and expressly left unresolved the retroactive application of the “one-year/three-year” limitations period. See Ceres, 918 F.2d at 364. The pending case squarely presents the issue left unresolved in Ceres. Under the traditional borrowing approach, we would look to the law of Connecticut as the forum state to determine the limitations period, see Armstrong v. McAlpin, 699 F.2d 79, 86-87 (2d Cir.1983), and to federal law for guidance as to the appropriate equitable tolling principle. See IIT, An International Investment Trust v. Cornfeld, 619 F.2d 909, 929 (2d Cir.1980). Federal courts in Connecticut have long considered the most appropriate limitations period for 10b-5 claims to be that found in the Connecticut Uniform Securities Act, which proscribes the bringing of suit “more than two years after the contract of sale.” Conn. Gen.Stat." }, { "docid": "12819075", "title": "", "text": "in section 10(b) cases. For us to change the applicable limitation period without good and substantial cause would add an unnecessary uncertainty to the prosecution of federal claims under section 10(b).” Those concerns are even stronger seven years later. The principle of stare decisis requires this result. The bench and bar of the Seventh Circuit have relied on a fifteen-year history of applying the Illinois securities law statute of limitations to federal securities law claims arising in Illinois. We are aware that there is a significant degree of confusion throughout the country regarding the appropriate methodology for selecting the appropriate state statute of limitations in securities cases. The selection of a statute of limitations is primarily a legislative task. When, as here, that task is left by default to the judiciary to accomplish by finding the most closely analogous state statute, such diversity in approach is inevitable. However, until the Congress sees fit to remedy the situation by the enactment of a uniform limitations period, we shall maintain our present course. In our view, it provides a fair and predictable approach to the limitations is sue that also furthers the purposes of the federal securities laws. Indeed, we hardly stand alone in our approach. Other courts have also recognized that the general commonality of purpose shared by the federal and state securities laws makes the state’s limitations period particularly appropriate for use in federal securities law claims. See, e.g., White v. Sanders, 650 F.2d 627, 632 (5th Cir.1981); O’Hara v. Kovens, 625 F.2d 15, 17 (4th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981); Morris v. Stifel, Nicolaus & Co., 600 F.2d 139, 142-44 (8th Cir.1979); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 414 (D.C.Cir.1977). Accordingly, we hold that the district court appropriately applied the three-year statute of limitations period of the Illinois securities statute to the present claims. Ill Tolling of the Statute of Limitations The Fund filed this suit almost five years after the loan was made to Bancorporation. The Fund argues that, even if the applicable statute of limitations is the" }, { "docid": "21846541", "title": "", "text": "the same by certified or registered mail, together with all papers affixed thereto, to Customer at Customer’s mailing address specified on Customer’s Application. Customer waives any right Customer may have to transfer or change the venue of any litigation brought against Customer by Heinold. On August 17, 1982, the trial court granted Heinold’s motion and dismissed the action. Andrews, who had been adjudicated a bankrupt in April 1980, had considerable difficulty obtaining Illinois counsel. He filed a second lawsuit in the Northern District of Illinois pro se on August 12, 1983, asserting his two federal claims. The trial court dismissed the complaint as time-barred on April 17, 1984, and denied plaintiff’s motion for reconsideration on June 4, 1984. Plaintiff filed a timely appeal, docketed in this Court as No. 84-1960. Plaintiff then returned to the Southern District of Indiana, and requested that court to vacate its original order of dismissal pursuant to Fed.R.Civ.P. 60(b)(6). The district court denied the motion, and plaintiff timely appealed. That appeal is No. 84-2674. We have jurisdiction over both appeals as final judgments under 28 U.S.C. § 1291. We consider first the appeal from the Northern District of Illinois. II Because the federal statutes giving rise to Andrews’ claim contain no express statute of limitations, federal courts must borrow the applicable statute from analogous state law, which in Illinois is the three-year period contained in the Illinois securities laws. Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir.1972) (Security Exchange Act of 1934); Shelley v. Noffsinger, 511 F.Supp. 687, 690-691 (N.D.Ill.1981) (Commodity Exchange Act). Assuming as did the court below that Andrews’ cause of action arose when he closed his account on September 6, 1979, the statute of limitations expired on that date in 1982. Thus, the first action was timely filed in Indiana, but the second lawsuit filed in Illinois was out of time, absent some other provision of Illinois law. The borrowing of a state statute of limitations includes the state’s tolling doctrines, which suspend the application of the statute of limitations in prescribed situations. Board of Regents of the University" }, { "docid": "12599507", "title": "", "text": "Jana Lynn sued A.C. Davenport & Son Co., its attorney Kravets and its accountant Miller alleging that in connection with the July 1978 stock redemption Kravets and Miller planned and executed an elaborate scheme to defraud her of the true value of her interest in A.C. Davenport & Son Co. Her three count amended complaint alleged violations of the antifraud provisions of the Securities Exchange Act of 1934, RICO and Illinois breach of fiduciary duty. Her failure to file within the appropriate time period was not attributed to her own lack of diligence but instead to her alleged fiduciary relationship with Kravets and Miller who “lulled” her into believing that she had sold her shares for their fair value. The district court, finding insufficient facts to merit tolling, dismissed her federal securities and RICO counts as time barred; the pendent state law claim accordingly fell under United Mine Workers v. Gibbs. Because we agree that the plaintiff failed to plead facts sufficient to toll the running of the applicable statutes of limitation we need not and do not decide whether the plaintiff’s RICO count alleged a pattern of racketeering activity. Accordingly, we affirm the district court’s dismissal of the federal claims as time barred and the consequent dismissal of her pendent state law claim for want of jurisdiction. I. The Securities Fraud Claim Because there is no explicit federal statute of limitations for private actions under 10b-5, the rule in the Seventh Circuit is that the statute of limitations applicable to the state blue sky law must be borrowed to determine the relevant limitation period. Andrews v. Heinold Commodities Inc., 771 F.2d 184, 186 (7th Cir.1985); Suslick v. Rothschild Securities Corp., 741 F.2d 1000, 1004 (7th Cir.1984); Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123, 125-27 (7th Cir.1972); but see Norris v. Wirtz, 818 F.2d 1329, 1332 (7th Cir.1987); In re Data Access Systems Securities Litigation, 843 F.2d 1537 (3rd Cir.1988). In this case the period is three years. The applicable Illinois blue sky statute provides in relevant part that: [n]o action shall be brought for relief under this" }, { "docid": "21581412", "title": "", "text": "the Seventh Circuit requirements for aiding and abetting on the grounds that plaintiffs had not adequately alleged that Arthur Young had the requisite scienter and that Arthur Young had no duty to force DOC to make the disclosures plaintiffs claim should have been made. Plaintiffs appeal from the dismissal of their amended complaint and Arthur Young cross-appeals from the denial of its motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291 and now affirm. II. ANALYSIS A. Statute of Limitations In its cross-appeal, Arthur Young renews its argument that actions under section 10(b) and rule 10b-5 should be governed by federal rather than state limitations periods. Specifically, Arthur Young argues that we should adopt the limitations period from section 13 of the Securities Act of 1933 and sections 9(e), 18(c), and 29(b) of the Securities Exchange Act of 1934 in place of the three-year limitation period provided by the Blue Sky law of Illinois, Ill.Rev.Stat. ch. 12U/2, para. 137.13 D. Under the relevant federal law, plaintiffs must file suit within one year after the discovery of facts constituting the viola tion, and in no event more than three years after the violation. Although plaintiffs brought this action more than three years after the sale of securities (the sale occurred on or around December 7, 1983, and this suit was filed on July 13, 1987), the state limitations period, unlike the federal limitations period with its three-year absolute bar, may be tolled by certain instances of fraud. The district court, applying the three-year Illinois statute and the federal tolling doctrine, rejected Arthur Young’s claim that the action was time-barred, holding that the complaint raised factual issues as to whether the statute should be tolled and when the limitations period began to run. Since this case was argued, the Seventh Circuit has ruled on the issue raised by Arthur Young in its cross-appeal. In Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385 (7th Cir.1990), we expressly overruled our prior precedents to hold that actions under section 10(b) and rule 10b-5 are governed by the limitations period found in section" }, { "docid": "22001533", "title": "", "text": "raised additional challenges. The Court will consider their arguments in sequence. COUNTS I and II Counts I and II of the complaint seek relief for defendants’ fraudulent and intentional misrepresentations and omissions with respect to the sale to members of the plaintiff class of interests in Teamster union pension funds, all in violation of Section 17(a) of the 1933 Act and Section 10(b) and Rule 10b-5 of the 1934 Act. Local defendants argue that Counts I and II are barred by the statute of limitations. It is not disputed that the Seventh Circuit holding in Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) provides that the applicable statute of limitations for an action for fraud under these sections is the three year period provided in the Illinois Securities Act, Ill.Rev.Stat. ch. 121/2, § 137.-13(D) and that: Under Illinois Securities Law, a buyer has three years to sue “not only from the date the right first accrues, but from the date the sale is completed”. (455 F.2d at 128) Plaintiff, however, argues that notwithstanding the three year statute of limitations, the federal tolling doctrine will delay running of the limitations period until the fraud is discovered “though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party”. Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743, 748 (1945). It was added in Parrent that the courts will: read into the three-year limitation applied in the Rule 10b-5 count the ‘equitable doctrine’ that the statute does not begin to run until the fraud is discovered where a plaintiff injured by fraud “remains in ignorance of it without any fault or want of diligence or care on his part . . (455 F.2d at 128) Defendants initially argue that plaintiff has admitted to actual knowledge, as evidenced by the fact that the complaint alleges that misrepresentations and omissions of material fact began as early as 1955 and have continued until the present time. The Court does not find" }, { "docid": "5169587", "title": "", "text": "10(b) claims are time-barred under the applicable Iowa law. f. Ninth Circuit A district court sitting in the Ninth Circuit prior to Ceres, would apply the “forum state’s statute of limitation for general fraud claims.” Reeves v. Teuscher, 881 F.2d 1495, 1500 (9th Cir.1989); accord Gray v. First Winthrop Corp., 989 F.2d 1564, 1566 (9th Cir.1993); Volk v. D.A. Davidson & Co., 816 F.2d 1406, 1411-12 (9th Cir.1987); Davis v. Birr, Wilson & Co., 839 F.2d 1369, 1370 (9th Cir.1988). 1. California A district court sitting in California would apply California’s three year statute of limitations for fraud actions, Cal.Civ.Pro. Code § 338 (West Supp.1990). See Stitt v. Williams, 919 F.2d 516 (9th Cir.1990) (holding the three year statute of limitations on plaintiffs securities fraud claims based on the formation of the limited partnership interests began to run when they received copies of the texts of the partnership agreements); Davis v. Birr, Wilson & Co., 839 F.2d 1369,1370 (9th Cir.1988) (applying California’s three year statute of limitations and holding that plaintiff may not toll the limitations because he should have discovered the fraud with “reasonable diligence” which is “tested by an objective standard”). Lucie Barron, the Barron Family Trust, Gerald R. Niznick, D.M.D., and George H. Rubens, M.D., all residents of California, purchased their respective Miami investment units between May and June, 1985, more than three years prior to filing this action. As a result, their securities claims are time barred under California law. 2. Nevada A federal district court sitting in Nevada prior to June 19, 1991, would follow the Ninth Circuit’s “practice of borrowing state fraud limitations periods” for security fraud actions. See Davis v. Birr, Wilson & Co., 839 F.2d 1369, 1373 (9th Cir.1988) (Aldisert, concurring) (listing Nev.Rev.Stat. § 11.190.-3(d) (1985) as an example of the diversity of state fraud statutes limitations period within the Ninth Circuit; arguing for one-year/ three-year rule). In the case at bar, not only the Barron Plaintiffs, but the Miami and Appraisal Defendants all seem to agree upon the statute of limitations period as set forth in the Nevada Uniform Securities Act," } ]

[ { "docid": "193928", "title": "", "text": "the members of a private law firm are wholly absent.” ABA Committee on Ethics and Professional Responsibility, Informal Op. 1235 (1972). Furthermore, even if the analogy were closer, we observe from the record that the testimony from the members of the claims office related to collateral matters: administrative processing of claims and discovery of possible irregularities. In contrast, appellant defended himself on the basis of mistake of fact; that he had inadvertently submitted a personally marked draft of the claim which he intended to use to appeal any lower award. Thus, the witnesses’ testimony was essentially unopposed and related to uncontested matters. In view of the actual testimony of the claims office witnesses, even if a staff judge advocate’s office were analogous to a law firm, appellant's argument must fail. ABA Disciplinary Rule 5-101(B)(l) and (B)(2). Ill Public confidence in the integrity and impartiality of a judge is sustained in large part by the conduct of a judge during the proceeding. See Canon 2A, ABA Code of Judicial Conduct. In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused. United States v. Lindsay, 12 U.S.C.M.A. 235, 30 C.M.R. 235 (1961). He does not, however, lay aside impartiality when he asks questions in the appropriate case to clarify factual uncertainties. Para. 54a, Manual, supra; see United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979). We conclude that the facts of this case do not demonstrate an abandonment by this military judge of his impartial role. The record reflects a breakdown of professional decorum on the part of all the attorneys involved leading certainly to a concomitant decrease in professionalism. We strongly discourage this type of petty behavior as unworthy of the' high standards required by the military justice system. Nevertheless, we observe that the record does not show an abandonment of the requisite judicial impartiality. Three examples of questioning are cited by appellant in order to buttress his position. The first involved admission of prosecution exhibit 2 for identification, a document ultimately admitted after certain judicial inquiries as" } ]

[ { "docid": "7458673", "title": "", "text": "find that the trial judge abused his discretion. A ground for challenge exists if a member demonstrates an “inelastic attitude” toward sentencing responsibilities. United States v. Davenport, 17 M.J. 242, 245 (C.M.A.1984); United States v. Tippit, 9 M.J. 106, 107 (C.M.A.1980). One is not automatically disqualified, however, because of an expression of an unfavorable inclination toward a particular offense. Reynolds, 23 M.J. at 294; United States v. Fort, 16 U.S.C.M.A. 86, 90, 36 C.M.R. 242, 245-46 (1966). Similarly, an articulation of a predisposition toward adjudging a particular form of punishment is not in and of itself disqualifying. United States v. McGowan, 7 MJ. 205, 206 (C.M.A.1979); United States v. Blevins, 27 M.J. 678, 680 (A.C.M.R.1988). “Rather, the test is whether the member’s attitude is of such a nature that he will not yield to the evidence presented and the judge’s instructions.” McGowan, 7 M.J. at 206. Additional voir dire is the vehicle for clarifying a member’s attitude toward sentencing. Smart, 21 M.J. at 19-20. In this case, the member’s initial response, seeming to foreclose the “no punishment” option, was predicated solely upon his review of the charges of which appellant stood convicted. His bluntly honest answer voiced a sentiment that is difficult to avoid when one is confronted with a naked description of appellant’s crimes. His subsequent responses, though, showed that he would review the evidence before reaching a decision and would follow the judge’s instructions. Although the member could have been questioned more thoroughly by the military judge, we are satisfied that he did not have an “inelastic attitude” toward punishment. Hence, we find that the military judge did not abuse his discretion in denying the challenge. IV Finally, appellant contends the military judge erred when, in response to a court member’s question, he informed the members of the existence of parole and good time credit. The following occurred during a break from deliberations: PRES: The final question, Your Honor, is concerning parole. Is there parole from a military sentence? MJ: There is parole within the military and the federal system, both, and there’s also good time credit. But" }, { "docid": "10495262", "title": "", "text": "to state that he felt it was better to go along “than taking the chances.” When the appellant again stated “and he told us that he would do harm to my family if,” the military judge interrupted him with “Is it to do harm to your family or turn you in for blackmarketing? Are we back to duress again, counselor?” After conferring with his counsel, the appellant backed off to “Well, it was better for us to go along.” At the conclusion of the providency inquiry, the following exchange occurred: MJ: Well, now, has your counsel told you about the defense of duress, here? Do you want to try and claim that somebody had a gun to your head or was using physical threats or psychological threats to commit a harm, serious bodily harm or death to your family or your self? You know that’s a defense to this stuff. Do you want to raise it? ACC: I understand that, your honor, but I feel that— MJ: It wasn’t there? ACC: No, your Honor, because the gun wasn’t pointed at me or — they just pointed at the guy that was wearing the gun. After this exchange, the military judge confirmed that the appellant had time to report the matter before he went ahead with the blackmarketing transaction and had not done so. At this point, the military judge apparently felt he had finally resolved the inconsistency and convinced the appellant that he had no realistic defense of duress. We disagree. In this case, it appears that the military judge and counsel were so preoccupied with saving appellant’s pleas of guilty that they lost sight of appellant’s right to his day in court. The military judge in this case was unable to resolve the inconsistency raised by appellant. When matters inconsistent with guilt are brought up by an accused during a providence inquiry, the military judge must either reject the plea of guilty or resolve the inconsistency. United States v. Palus, 13 M.J. 179 (C.M.A.1982); United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Collins, 17 M.J. 901" }, { "docid": "22771966", "title": "", "text": "as a whole might have been defective within the meaning of Strickland, even though individual oversights or mistakes standing alone might not satisfy Strickland. See Frey v. Fulcomer, 974 F.2d 348, 361 n. 12 (3d Cir. 1992) (prejudice determined by review of all of counsel’s errors combined), cert. denied, - U.S. -, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). Our review of the entire record satisfies us that appellant was vigorously and competently defended. ISSUE IV WHETHER THE MILITARY JUDGE ABANDONED HIS ROLE AS A NEUTRAL OFFICER OF THE COURT THEREBY DENYING APPELLANT A FAIR TRIAL. 48. Appellant contends that the military judge denied him a fair trial by becoming an advocate for the prosecution. At the initial session of the court-martial under Article 39(a), UCMJ, 10 USC § 839(a), on January 31.1989, defense counsel conducted an extensive voir dire of the military judge and then elected not to challenge him for cause at that time. At an Article 39(a) session on March 16.1989, defense counsel challenged the military judge for cause based on adverse rulings and comments by the military judge at preceding pretrial sessions. It is axiomatic that a military “judge may not abandon” his “impartial” role and “assist” the prosecution. United States v. Reynolds, 24 MJ 261, 264 (CMA 1987). On the other hand, the military judge “is not a mere figurehead” or “simply an umpire in a contest between the Government and accused.” United States v. Kimble, 23 USC-MA 251, 253, 49 CMR 384, 386 (1974). The military judge has the responsibility to “exer cise reasonable control over the proceedings.” RCM 801(a)(3). He “should prevent unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality.” RCM 801(a)(3), Discussion. Because “jurors are ever watchful of the words that fall from him,” a military judge must be circumspect in what he says to the parties and in how he examines witnesses. United States v. Clower, 23 USCMA 15, 18, 48 CMR 307, 310 (1974), quoting Bollenbach v. United States, 326 U.S. 607, 612, 66" }, { "docid": "16010055", "title": "", "text": "of two sworn statements of appellant’s friends, Private First Class DeMott and Specialist Mulcahy who testified in support of appellant’s alibi. In their post-trial statements they admitted to having committed perjury by testifying falsely at appellant’s behest. Inclusion of these two statements was not addressed by the trial defense counsel in his rebuttal to the staff judge advocate’s post-trial review. Further, inclusion of the statements in the review did not result in manifest injustice nor deprive the appellant of any fundamental rights. The content of these statements added nothing new to the substance of the military judge’s sua sponte findings that the testimony about the alibi “was totally unbelievable.” Accordingly, the appellant waived any right to assert this error on appeal. United States v. Goode, 1 M.J. 3 (C.M.A. 1975). Appellant’s last contention that the military judge abandoned his impartial role during his inquiries of defense witnesses is also without merit. The trial judge is not a mere figurehead or an umpire in a trial contest. While he can not lay aside impartiality and become an advocate for one side or the other, he can, and in our view sometimes must, ask questions to clear up uncertainties in the evidence or further develop the facts. Paragraphs 54a, b, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979); United States v. Blackburn, 2 M.J. 929 (A.C.M.R.), pet. denied, 2 M.J. 166 (C.M.A. 1976). In the case at hand the military judge asked follow-up questions of witnesses for both sides. After the defense reopened its case once again attempting to persuade the military judge, the fact finder, that on 15 August 1981, Vance was at Kelly’s Bar, the military judge asked the trial counsel to call personnel from Walson Army Hospital “to testify as to the probability or possibility of Vance being able to leave the hospital on the 15th of August.” At trial the appellant raised no objection to the military judge’s questioning of wit nesses. At this level, his complaint is focused on the military judge’s: (1) attempt to elicit a valid" }, { "docid": "14140250", "title": "", "text": "him the drugs allegedly purchased from the accused. The main issue at trial was the credibility of Cox, and the case centered around efforts to discredit or bolster his veracity. His credibility was attacked by evidence of his own prior drug use, inconsistent statements about that use, and his general reputation for truth and veracity. Defense counsel also presented testimony relating to the results of psychological tests administered to Cox, and a psychologist testified extensively concerning Cox’s personality and a character disorder which could affect his truthfulness. The prosecution presented, as rebuttal to this strenuous attack, an airman’s performance report on Cox and the testimony of a psychiatrist who disagreed with the psychologist’s conclusions. Subsequent to Cox’s testimony on direct and cross-examination, the military judge asked Cox 72 questions, and later asked Craig some 32 questions. However, his examination of the informant and Craig were not partisan in nature but were primarily to clarify earlier testimony such as that relative to Cox’s drug use. At other times the judge frequently interrupted the defense case. But, the judge’s interruptions of both counsel stemmed from their inartful phrasing of questions and was intended to establish a proper foundation for admitting prior inconsistent statements, reputation testimony and testimony of expert witnesses on psychological testing. The military judge allowed wide latitude to the defense, but did require both counsel to examine witnesses properly when eliciting testimony. The number of questions asked by a military judge does not determine departures from his impartiality. United States v. Shackelford, 2 M.J. 17 (C.M.A.1976). As the Court of Military Appeals has noted, the military judge is not a mere figurehead and not simply an umpire in a contest between the Government and the accused. “He can ask questions not only ‘to clear up uncertainties in the evidence’ but also ‘to develop further the facts for the better understanding of the court members.’ ” United States v. Kimble, 23 U.S.C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974). In this case, we can find no attack on the accused or his credibility, nor did the judge become an advocate for" }, { "docid": "14140251", "title": "", "text": "the judge’s interruptions of both counsel stemmed from their inartful phrasing of questions and was intended to establish a proper foundation for admitting prior inconsistent statements, reputation testimony and testimony of expert witnesses on psychological testing. The military judge allowed wide latitude to the defense, but did require both counsel to examine witnesses properly when eliciting testimony. The number of questions asked by a military judge does not determine departures from his impartiality. United States v. Shackelford, 2 M.J. 17 (C.M.A.1976). As the Court of Military Appeals has noted, the military judge is not a mere figurehead and not simply an umpire in a contest between the Government and the accused. “He can ask questions not only ‘to clear up uncertainties in the evidence’ but also ‘to develop further the facts for the better understanding of the court members.’ ” United States v. Kimble, 23 U.S.C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974). In this case, we can find no attack on the accused or his credibility, nor did the judge become an advocate for the prosecution. United States v. Wilson, 2 M.J. 548 (A.C.M.R.1976). We find the judge did not depart from his impartial role. United States v. Hobbs, 8 M.J. 71 (C.M.A.1979); United States v. Shackelford, supra; United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974). Proceeding to the second assertion of counsel we discuss, we find no error in the admission, over objection, of Cox’s per formance report. Consistent practice before military courts permits an accused to present evidence of good military performance to bolster his good character and reputation for truth and veracity. For example, see United States v. Williams, 3 M.J. 239 (C.M.A.1977); United States v. Conrad, 15 U.S.C.M.A. 439, 35 C.M.R. 411 (1965). It is well settled that if the credibility of a witness has been attacked, proof that the witness has a good character as to truth and veracity may be introduced. Manual for Courts-Martial, 1969 (Rev.), paragraphs 138 f( 1) and 153b (2). Moreover, credibility, if attacked, can be bolstered by evidence which might not be otherwise admissible such as" }, { "docid": "18953858", "title": "", "text": "a form acceptable to the military judge. When a witness who has not testified previously is called by the military judge or the members, the military judge may conduct the direct examination or may assign the responsibility to counsel for any party. There is no federal civilian counterpart to this rule. However, the practice of court-member questioning is of long standing at courts-martial. See W. Winthrop, Military Law and Precedents 178 (2d ed. 1920 Reprint), and reluctantly recognized in a majority of jurisdictions. See United States v. Martinsmith, 41 MJ 343, 348 n. 5 (1995); but see Morrison v. State, 845 S.W.2d 882, 884 n. 5 (Tex.Crim.App.1992). We are not persuaded by appellant’s argument that such questioning renders a member partial or biased as a matter of law. Allowing questions by a juror is a good way to have a more informed juror — one who is in a better position to determine the truth in a trial. Moreover, looking at the process in this case, the court-martial members in this trial record of over 2500 pages asked only 39 questions, only one of which was objected to by the parties. (R. 1921) Accordingly, this argument is also unsupported as a matter of fact and law in this ease. ISSUE XLIII WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE MILITARY JUDGE IMPROPERLY ABANDONED HIS ROLE OF IMPARTIALITY AND BECAME A PARTISAN ADVOCATE FOR THE GOVERNMENT. Appellant asserts that “the military judge repeatedly abandoned his role of impartiality and acted as a partisan advocate for the Government.” Final Brief at 301. He then notes six examples of this supposedly pro-government conduct, as follows: See, e.g., R. at 158-61 (military judge characterizes defense questions as “fishing expedition”), R. at 433-36 (military judge criticizes defense counsel for not interviewing unavailable witness), R. at 513-14 (military judge attacks defense counsel’s legitimate voir dire question), R. at 678 (military judge flippantly insults defense counsel concerning challenge for cause of member), R. at 940 (military judge acting as government advocate concerning questioning of witness), R. at 2498 (military judge disregarding defense counsel attempt at" }, { "docid": "7458675", "title": "", "text": "I’m not going to instruct you in detail on that procedure because it’s nothing that you can do anything about and you can’t take that into consideration in adjudging what you believe to be an appropriate sentence. PRES: I see. MJ: That’s within the purview of other authorities. PRES: Very good, Sir____ In response to a defense request for further instructions, the military judge reemphasized to the members that those factors were not for their consideration: MJ: Right. As I’ve indicated, you should adjudge what you believe to be an appropriate sentence without relying on mitigating action by any authority in the case. PRES: Your point has been taken, Your Honor. The administrative procedures that permit penal authorities to adjust a prisoner’s release date are collateral to the sentencing function. Hence, when fashioning an appropriate sentence, the court should not speculate as to any administrative relief that might be granted during confinement. It is well-established that an accused should be sentenced without regard to any collateral administrative consequences of the punishment. United States v. Henderson, 29 M.J. 221 (C.M.A.1989); United States v. Murphy, 26 M.J. 454 (C.M.A.1988); United States v. Griffin, 25 M.J. 423 (C.M.A.), cert. denied, 487 U.S. 1206, 108 S.Ct. 2849, 101 L.Ed.2d 886 (1988); United States v. Quesinberry, 12 U.S.C.M.A. 609, 612, 31 C.M.R. 195, 198 (C.M.A.1962); but cf. United States v. Rosato, 32 M.J. 93 (C.M.A.1991) (error to bar accused from commenting in unsworn statement on collateral matters about return-to-duty program). It is not necessarily error, however, for a military judge to answer court members’ questions on collateral consequences of sentencing alternatives. Griffin, 25 M.J. at 425; United States v. Nixon, 30 M.J. 501, 506 (A.F.C.M.R.1989). In this case, the military judge merely acknowledged the existence of two related mechanisms for administrative relief—one of which the members had apparently discussed. In subsequent comments, he clearly directed the members not to consider those or any similar extraneous matters during their deliberations. We conclude that this explicit guidance was appropriate and adequate to preclude any improper consideration by the members. See United States v. Ricketts, 1 M.J. 78" }, { "docid": "5998348", "title": "", "text": "he is or not. MJ: I’m absolutely certain that I don’t understand how you feel about this up to this point. I’ve instructed you that the fact that these Charges have been preferred or referred, for that matter, to this court raises [no] inference of his guilt with regard to your determination. Do you understand that? MEM-CAPTAIN THOMAS: Yes, sir. MJ: Will that be a factor then in .. Will the fact that they have been preferred and referred be a factor that you will consider in determining whether or not he’s guilty or not? MEM-CAPTAIN THOMAS: No, sir. MJ: Do you understand what I’m saying? MEM-CAPTAIN THOMAS: Yes, sir. MJ: Will the fact that Captain Garrambone preferred the Charges, or the fact that General Thompson referred them to court be any basis at all for your determining whether or not the accused is guilty or innocent? MEM-CAPTAIN THOMAS: No, sir. MJ: Okay, in other words, you feel that you can determine that issue based solely upon what you hear in court? MEM-CAPTAIN THOMAS: Yes, sir. The trial defense counsel challenged Captain Thomas on the ground that she believed the appellant “would not be [on trial] if he wasn’t guilty.” The military judge denied the challenge. The test to be used in determining whether a judge abused his discretion in denying a challenge is whether the prospective court member “is mentally free to render an impartial finding and sentence based on the law and the evidence.” United States v. Parker, 6 U.S.C.M.A. 274, 284-85, 19 C.M.R. 400, 410-11 (1955); accord United States v. McQueen, 7 M.J. 281 (C.M.A.1979). Applying this test, we are satisfied that the military judge did not abuse his discretion. Although Captain Thomas first stated that she regarded the information on the charge sheet as “factually correct,” the judge advised her that the fact that charges were preferred and referred to trial can have no bearing on a determination of the appellant’s guilt. After this explanation, Captain Thomas stated that she could determine the case solely on the evidence introduced in court. Her answers merely reflect her" }, { "docid": "11889683", "title": "", "text": "objectively instruct the members, rule on objections, and that sort of thing, because my role is different. After the military judge disclosed that she would be comfortable presiding over a members trial, Appellant elected to be tried before officer and enlisted members. Nevertheless, he asked the military judge to recuse herself. She denied the recusal request and again told Appellant that if he chose a judge-alone forum she would recuse herself because she had made decisions favorable to Appellant in terms of assessing witness credibility. Those decisions “would suggest to an impartial person looking in that I can’t be impartial in this case.” II. “An accused has a constitutional right to an impartial judge.” United States v. Wright, 52 M.J. 136, 140 (C.A.A.F.1999) (citing Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)). Except where the parties have waived disqualification of the military judge after full disclosure of the basis for disqualification, a military judge must recuse herself “in any proceeding in which that military judge’s impartiality might reasonably be questioned.” Rule for Courts-Martial (R.C.M.) 902(a). Whether the military judge should disqualify herself is viewed objectively, and is “assessed not in the mind of the military judge [herjself, but rather in the mind of a reasonable man ... who has knowledge of all the facts.” Wright, 52 M.J. at 141 (citation and quotation marks omitted). Military judges should “broadly construe” possible reasons for disqualification, but also should not recuse themselves “unnecessarily.” Id.; R.C.M. 902(d)(1) Discussion. On appellate review, this Court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion. United States v. Butcher, 56 M.J. 87, 90 (C.A.A.F.2001). It is well-settled in military law that the military judge is more than a mere referee. United States v. Wolford, 62 M.J. 418, 422 (C.A.A.F.2006); United States v. Cooper, 51 M.J. 247, 253 (C.A.A.F.1999) (Gierke, J., concurring in part and in the result); United States v. Graves, 1 M.J. 50, 53 (C.M.A.1975). She is “the" }, { "docid": "18953859", "title": "", "text": "2500 pages asked only 39 questions, only one of which was objected to by the parties. (R. 1921) Accordingly, this argument is also unsupported as a matter of fact and law in this ease. ISSUE XLIII WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE MILITARY JUDGE IMPROPERLY ABANDONED HIS ROLE OF IMPARTIALITY AND BECAME A PARTISAN ADVOCATE FOR THE GOVERNMENT. Appellant asserts that “the military judge repeatedly abandoned his role of impartiality and acted as a partisan advocate for the Government.” Final Brief at 301. He then notes six examples of this supposedly pro-government conduct, as follows: See, e.g., R. at 158-61 (military judge characterizes defense questions as “fishing expedition”), R. at 433-36 (military judge criticizes defense counsel for not interviewing unavailable witness), R. at 513-14 (military judge attacks defense counsel’s legitimate voir dire question), R. at 678 (military judge flippantly insults defense counsel concerning challenge for cause of member), R. at 940 (military judge acting as government advocate concerning questioning of witness), R. at 2498 (military judge disregarding defense counsel attempt at explaining alternate perception theory). Final Brief at 301. We have examined the record of trial concerning these purported incidents of judicial bias and find no abandonment by the judge of his impartial role. See United States v. Reynolds, 24 MJ 261, 265 (CMA 1987). We further note that the members were not present during any of these incidents. The first comment by the military judge concerned a defense request for investigative services by CID and the CID Commander’s response to that request. We note that the judge used this expression two times in this context. (R. 158, 160.) However, we are also aware that it is a commonly used term of art describing a general request for information favorable to one’s client without any basis for concluding such information exists. See United States v. Irwin, 30 MJ 87, 94 (CMA 1990), quoting United States v. Enloe, 15 USCMA 256, 262, 35 CMR 228, 234 (1965); United States v. Hagen, 25 MJ 78, 85 (CMA 1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d" }, { "docid": "15197123", "title": "", "text": "on appeal, the test is “whether, ‘taken as a whole in the context of this trial,’ a court-martial’s ‘legality, fairness, and impartiality’ were put into doubt by the military judge’s questions.” Ramos, supra at 396, quoting United States v. Reynolds, 24 MJ 261, 265 (CMA 1987). The test is objective, judged from the standpoint of a reasonable person observing the proceedings. Ramos, supra at 396. Our standard of review is abuse of discretion. United States v. Rivers, 49 MJ 434, 444 (1998). In the context of member disqualification, our Court has observed that “[a]n inflexible member is disqualified; a tough member is not.” United States v. Schlamer, 52 MJ 80, 93 (1999). When a military judge is the sentencing authority, the same standard applies: a biased or inflexible judge is disqualified; a tough judge is not. Applying the above principles to this case, we hold that the military judge was not disqualified. Appellant requested a bench trial, knowing the identity of the military judge. At no time did the defense object to the military judge’s questioning. The military judge’s questions reflected his judicial sentencing philosophy and not any personal bias against appellant. Since appellant had asserted that his years of service entitled him to leniency, it was not improper for the military judge to ask him why his experience, training, and background did not make him more aware of the consequences of his misconduct. It also was not improper for the military judge to ask him why he thought he could be given leniency without imposing a double standard, one for NCOs and another for low-ranking Marines. None of the military judge’s questions reflect an inflexible predisposition to impose a bad-conduct discharge. The military judge imposed only 30 days’ confinement, well be low the jurisdictional limit of the court-martial and the maximum punishment for the offense. We conclude that a reasonable person observing this court-martial would not doubt the military judge’s impartiality. Accordingly, we hold that the military judge did not abuse his discretion. Decision The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed." }, { "docid": "22771967", "title": "", "text": "rulings and comments by the military judge at preceding pretrial sessions. It is axiomatic that a military “judge may not abandon” his “impartial” role and “assist” the prosecution. United States v. Reynolds, 24 MJ 261, 264 (CMA 1987). On the other hand, the military judge “is not a mere figurehead” or “simply an umpire in a contest between the Government and accused.” United States v. Kimble, 23 USC-MA 251, 253, 49 CMR 384, 386 (1974). The military judge has the responsibility to “exer cise reasonable control over the proceedings.” RCM 801(a)(3). He “should prevent unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties’ presentations or the appearance of partiality.” RCM 801(a)(3), Discussion. Because “jurors are ever watchful of the words that fall from him,” a military judge must be circumspect in what he says to the parties and in how he examines witnesses. United States v. Clower, 23 USCMA 15, 18, 48 CMR 307, 310 (1974), quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). RCM 902(a) provides that “a military judge shall disqualify himself or herself in any proceeding in which that military judge’s impartiality might reasonably be questioned.” RCM 902 is based on 28 USC § 455 and contains substantially the same language. Drafters’ Analysis of RCM 902, Manual, supra at A21-45. The standard of appellate review of the recusal decision is abuse of discretion. S. Childress & M. Davis, 2 Federal Standards of Review § 12.05 at 12-37 (2d ed. 1992). The standard is based on “the ‘reasonable person’ test: if a reasonable person would not question the judge’s impartiality on the basis of the facts presented, then it is not an abuse of discretion for the judge to deny the motion for recusal.” Id. at 12-38. 49. Appellant has asked this Court to consider the military judge’s “track record” and has cited nine cases in which the military judge has allegedly exhibited pro-government conduct. Final Brief at 155-57. We decline to decide this case on the basis of the" }, { "docid": "12134523", "title": "", "text": "in paragraph 53h, Manual for Courts-Martial, United States, 1969 (Revised edition), precludes an inquiry by the military judge: However, after a determination of guilt has been reached, the military judge or president of a special court-martial without a military judge will personally remind the accused of his rights to make a sworn or unsworn statement to the court in mitigation or extenuation of the offenses of which he stands convicted, or to remain silent. See 75e(2). This paragraph is concerned with an accused’s options to present matters during the sentencing portion of the hearing. It does not purport to grant an accused a right to remain silent independent of Article 31 and the Fifth Amendment. Rather, the paragraph merely imposes an obligation upon the military judge to remind an accused of his various options. See United States v. Hawkins, 2 M.J. 23 (C.M.A.1976). Accordingly, in each case, the decision of the United States Army Court of Military Review is affirmed. Judge FLETCHER concurs. In Spivey’s case, the military judge originally ruled that one of the records was inadmissible because it contained extraneous matters. He then questioned the evidence custodian who prepared another exhibit without the extraneous matter. Contrary to appellant’s argument on appeal, we do not perceive the trial judge’s action as a departure from an impartial role. See United States v. Hobbs, 8 M.J. 71 (C.M.A.1979). EVERETT, Chief Judge (concurring in the result): In United States v. Mathews, 6 M.J. 357 (C.M.A.1979), and in United States v. Barlow, 9 M.J. 214 (C.M.A.1980), there were pleas of guilty. According to paragraph 70 b, Manual for Courts-Martial, United States, 1969 (Revised edition), such a plea by an accused, “if accepted, waives his right against self-incrimination.” In like fashion, the Supreme Court has stated that “[a] defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969) (footnote omitted). Therefore, if, as in the cases at hand," }, { "docid": "12137171", "title": "", "text": "United States v. Clower, 23 USCMA 15, 18, 48 CMR 307, 310 (1974), quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 405, 90 L.Ed. 350 (1946). 16. That said, however, this Court has acknowledged that a military judge is not “a mere referee” but, rather, properly may participate actively in the proceedings. See United States v. Graves, 1 MJ 50, 53 (CMA 1975). Thus, while a military judge must maintain his fulcrum position of impartiality, the judge can and sometimes must ask questions in order to clear up uncertainties in the evidence or to develop the facts further. See United States v. Dock, supra; United States v. Tolppa, 25 MJ 352 (CMA 1987); United States v. Reynolds, 24 MJ 261 (CMA 1987). 17. The legal test that flows from all this is whether, “taken as a whole in the context of this trial,” a court-martial’s “legality, fairness, and impartiality” were put into doubt by the military judge’s questions. United States v. Reynolds, supra at 265. This test is applied from the viewpoint of the reasonable person. S. Childress & M. Davis, 2 Federal Standards of Review § 12.05 at 12-38 (2d ed. 1992). No such doubt exists here. SSG Knight’s testimony in certain respects was confusing and inconsistent; and the military judge properly questioned the witness in an effort to resolve the confusion, reconcile the inconsistency, and make clear for the members exactly what was the basis or bases of his opinion of appellant’s rehabilitative potential. See generally United States v. Ohrt, 28 MJ 301, 304 (CMA 1989) (“Thus, a foundation must be laid to demonstrate that the witness does possess sufficient information and knowledge about the accused—his character, his performance of duty as a servicemember, his moral fiber, and his determination to be rehabilitated—to give a ‘rationally based’ opinion” as to rehabilitative potential.). 18. Regarding the military judge’s sua sponte instruction to the members to disregard SSG Knight’s testimony “that he thinks [appellant] can still be a soldier in the Army,” ¶ 11, it does not seem entirely unreasonable that the military judge viewed such" }, { "docid": "16010056", "title": "", "text": "an advocate for one side or the other, he can, and in our view sometimes must, ask questions to clear up uncertainties in the evidence or further develop the facts. Paragraphs 54a, b, Manual for Courts-Martial, United States, 1969 (Revised edition); United States v. Hobbs, 8 M.J. 71 (C.M.A. 1979); United States v. Blackburn, 2 M.J. 929 (A.C.M.R.), pet. denied, 2 M.J. 166 (C.M.A. 1976). In the case at hand the military judge asked follow-up questions of witnesses for both sides. After the defense reopened its case once again attempting to persuade the military judge, the fact finder, that on 15 August 1981, Vance was at Kelly’s Bar, the military judge asked the trial counsel to call personnel from Walson Army Hospital “to testify as to the probability or possibility of Vance being able to leave the hospital on the 15th of August.” At trial the appellant raised no objection to the military judge’s questioning of wit nesses. At this level, his complaint is focused on the military judge’s: (1) attempt to elicit a valid basis for a defense witness’ testimony reflecting on the truth and veracity of the main prosecution witness, Vance; (2) asking probing questions of a defense witness upon whose testimony the military judge was asked to reconsider his previously announced findings of guilty; and (3) asking two defense witnesses questions bearing on the appropriateness of their testimonial recommendation to the military judge that, in spite of the conviction, the appellant should be retained in service. Under the totality of circumstances, it is apparent to us that the military judge tried to reconcile and further develop facts which he felt were necessary to his proper resolution of the case. While he did so vigorously, he did not abandon the mantle of judicial impartiality. The findings of guilty and the sentence are affirmed. Senior Judge MILLER and Judge BADAMI concur. . Testimony of other witnesses indicates that Kelly’s Bar is located in Wrightstown, New Jersey. . Staff Sergeant Maturi was not able to recall even one instance of Vance having lied to him in the past and did" }, { "docid": "193930", "title": "", "text": "an accurate photocopy of the originally submitted claim. See Mil.R. Evid. 1003, Manual, supra. These questions were not improper. The second example involved the judge’s comments in an Article 39(a), UCMJ, 10 U.S.C. § 839(a), session regarding trial counsel's examination of Special Agent Keller and the military judge’s response to defense counsel’s objection. While these comments were harsh, they reflected the judge’s proper control of the proceedings over which he was presiding. The third example involved testimony of appellant himself who defended his claim-submission on the basis that his \"working papers” had been inadvertently submitted. Earlier appellant had testified that he photocopied the “working papers” himself at a convenience store; later he asserted that his secretary had copied the “working papers.” This led to the judge’s question, “Are we playing with the words, or are you changing your testimony, or what?” As a consequence, the defense asked for a recess, objected to the judge’s “tone,” and moved for a mistrial. This was denied. Subsequently the military judge refrained from substantial active questioning. While we strongly condemn the foregoing utterance of this military judge, we do not consider it tantamount to an expression of a positive or definite opinion of the guilt of the accused; and it does not raise substantial doubt as to the proceeding’s legality, fairness, and impartiality. See paras. 62f(10) and (13), Manual, supra. A thorough examination of the record and the functioning of this military judge reveals no prejudice to appellant. The judge’s conduct, taken as a whole in the context of this trial, leads us to conclude that he did not abandon his impartial role. We conclude that none of the asserted errors in this case has merit. The decision of the United States Army Court of Military Review is affirmed. Chief Judge EVERETT and Judge SULLIVAN concur. . Appellant was sentenced to 1 year’s confinement and $500 forfeiture per month for 12 months. This was approved by the Convening Authority and affirmed by the Court of Military Review. 19 M.J. 529. . We note with disapproval the appointment here of a junior officer, even though" }, { "docid": "12080488", "title": "", "text": "preserve the appearance of fairness in the trial, even if the judge believes the challenged member will be impartial. Compare United States v. McDavid, 37 M.J. 861 (A.F.C.M.R.1993) (military judge properly denied challenge of security policeman), pet. denied, 39 M.J. 405 (C.M.A.1994) with United States v. Swagger, 16 M.J. 759 (A.C.M.R.1983) (military judge should’ve granted challenge of provost marshal to preserve appearance of fairness). As appellate government counsel conceded during oral argument, in determining whether implied bias exists, the military judge should consider whether a reasonable, disinterested layman would believe the proceedings smacked of unfairness if the challenged member continues to sit. Here, defense counsel initially focused on implied bias and not actual bias, particularly regarding Major C who, she specifically conceded, was honest in his statements of impartiality. While the military judge resolved the issue using an actual bias analysis, we conclude he did not err in denying the challenge. On the actual bias part of the equation, we agree with the trial judge that both members were unequivocal in their statements of impartiality and ability to follow the judge’s instructions on the law. We were particularly impressed, as was the trial judge, with their forthrightness in discussing intensely personal matters with a courtroom of strangers. While defense counsel renewed her objection based on actual bias after the members questioned the expert witness, we still agree with the trial judge that these two members were impartial. Granted, the members asked numerous questions throughout the trial, but so did all the court members. This court panel was not content to sit back in a passive role; instead, they asked numerous questions of every witness, and recalled witnesses. We find Majors C and D remained impartial in their questioning of the expert. Article 66(c), UCMJ, 10 U.S.C. § 866(e). However, the issue of implied bias is a much closer call in this case, particularly where the members had immediate family who had been the victims of crimes similar to that charged against the appellant, and both had extensive knowledge of issues which would arise in expert testimony. See United States v." }, { "docid": "14917859", "title": "", "text": "all the time and never—so you just heard some rumors that you all might be going to Okinawa? ACC: Yes, sir. MJ: Okay. I’m not going to take his plea. Id. We start with the premise that the appellant has the right to offer a guilty plea, and to do so pursuant to a pretrial agreement. Art. 45, UCMJ, 10 U.S.C. § 845; Rules for Courts-Martial 705(b)(1) and 910(a)(1), Manual for Courts-Martial, United States (2000 ed.). In this regard we are mindful that “a provident plea of guilty is one that is knowingly, intelligently, and consciously entered and is factually accurate and legally consistent.” United States v. Watkins, 35 M.J. 709, 712 (N.M.C.M.R.1992)(citing United States v. Sanders, 33 M.J. 1026 (N.M.C.M.R.1991)). Furthermore, “the accused must be convinced of, and able to describe all the facts necessary to establish guilt.” R.C.M. 910(e), Discussion. A factual basis is required for a military judge to accept an accused’s guilty plea and the military judge is required to question an accused to establish this factual basis. United States v. Chambers, 12 M.J. 443, 444 (C.M.A.1982); United States v. Care, 40 C.M.R. 247, 1969 WL 6059 (C.M.A.1969); United States v. Williamson, 42 M.J. 613, 615 (N.M.Ct.Crim.App.1995). The crux of the dispute in this case is whether the appellant provided a sufficient factual basis during the providence inquiry for the military judge to conclude that the appellant had actual knowledge of the scheduled movement of his unit, a required element of proof under Article 87, UCMJ. We believe the appellant did. The responsibility of the military judge to ensure a guilty plea is provident is clear. We understand that there may be a natural inehnation on the part of the military judge to err on the side of caution on the matter. We believe that to be the case here, where the questioning by the military judge did not focus on the appellant’s knowledge of his unit’s movement, so much as it did on the reliability and source of that knowledge. It is clear the military judge questioned the credibility of information the appellant relied on" }, { "docid": "18953860", "title": "", "text": "explaining alternate perception theory). Final Brief at 301. We have examined the record of trial concerning these purported incidents of judicial bias and find no abandonment by the judge of his impartial role. See United States v. Reynolds, 24 MJ 261, 265 (CMA 1987). We further note that the members were not present during any of these incidents. The first comment by the military judge concerned a defense request for investigative services by CID and the CID Commander’s response to that request. We note that the judge used this expression two times in this context. (R. 158, 160.) However, we are also aware that it is a commonly used term of art describing a general request for information favorable to one’s client without any basis for concluding such information exists. See United States v. Irwin, 30 MJ 87, 94 (CMA 1990), quoting United States v. Enloe, 15 USCMA 256, 262, 35 CMR 228, 234 (1965); United States v. Hagen, 25 MJ 78, 85 (CMA 1987), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 981 (1988). Appellant’s second challenge to the military judge’s impartiality rests on his purported criticism of defense counsel’s failure to interview possible defense witnesses concerning a fire in the car of Ms. Vickery-Clay. These comments were made in the context of a defense request to reveal the identity of a government source as a witness to that fire during a hearing to determine whether such action was necessary. This comment was not biased or inappropriate in light of the constitutional standard of necessity. See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The third challenged comment by the judge concerned a question asked by defense counsel on voir dire. The record states: DC: What kind of first degree, premeditated murders would you not vote for a death sentence on? COL CUSICK: I don’t know. I don’t know how many kinds there are. I don’t understand the question maybe. DC: Okay, of the great range of premeditated murders, from the worst to the least aggravated, are there premeditated murders —" } ]

[ { "docid": "10922282", "title": "", "text": "confession into the assessment of voluntariness.” 378 U.S. at 386, 84 S.Ct. at 1786. Disapproving the “New York rule,” the Court prescribed a procedure which demanded that before the issue of the voluntariness of a confession could be submitted to the jury the trial court must make its own independent determination that the confession was voluntary. See Sims v. State of Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). To do so it is necessary that the court excuse the jury and hold a hearing in which evidence presented by the opposing sides can be received. At this hearing out of the presence of the jury the defendant can give his version of the facts leading up to and surrounding the making of his alleged confession without fear of impeachment or broad cross-examination to his prejudice. In United States v. Inman, 352 F.2d 954 (4 Cir. 1965), decided more than three months prior to Mullins’ trial, we heeded the Supreme Court’s teaching in Jackson v. Denno, and laid down specific rules to be followed by the federal courts in this circuit whenever a confession is proffered by the Government. We pointed out that the procedure must be followed “even though there be no objection” interposed by defendant. 352 F.2d at 956. (Emphasis added.) Upon the proffer of the confession the jury must be withdrawn and evidence taken upon the confession and its factual setting. The defendant is free to testify and he may be cross-examined only as to the origin and character of the confession, not upon his innocence or guilt. After hearing such evidence the court will decide whether the confession is voluntary. “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.” 352 F.2d 956. If the District Judge does not determine that the confession is voluntary it may not be admitted. If he is satisfied that it is voluntary he must make and include in the record a finding of that fact. Furthermore," } ]

[ { "docid": "21851779", "title": "", "text": "2. What is the burden of proof? (a) Common Law Rule Once it becomes apparent that the issue is in the case (Maguire, Evidence of Guilt, 221 (1959)), the government bears the burden of convincing the court that evidence it seeks to introduce at a criminal trial was not obtained by it in violation of a defendant’s constitutional rights. There is lack of agreement about the weight of this burden. Some have suggested that it is by a preponderance. Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354, 358-359 (1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967) (confession). Others use a variant of the phrase “clear and convincing evidence.” United States v. Smith, 308 F.2d 657, 663 (2d Cir. 1962), cert. denied, 372 U.S. 906, 83 S.Ct. 717, 9 L.Ed.2d 716 (1963) (consent to search must be “proven by clear and positive evidence”); Fisher v. United States, 382 F.2d 31, 34 (5th Cir. 1967) (confession; “clear cut determination”); Evans v. United States, 375 F.2d 355, 360 (8th Cir. 1967), rev’d on other grounds sub nom. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (confession); United States v. Page, 302 F.2d 81, 83-84 (9th Cir. 1962) (consent to search; “clear and positive testimony”); cf. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967) (government could “establish by clear and convincing evidence that the in-eourt identifications were based upon observations of the suspect” other than those made at the prior identification; reasons for standard not discussed). Still others have declared that “proof beyond a reasonable doubt” is required. Mullins v. United States, 382 F.2d 258, 261 (4th Cir. 1967) (confession); United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965) (confession); Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354, 360-364 (1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967) (concurring opinion) (confession) ; Pea v. United States, 397 F.2d 627, 633, n. 7 (D.C.Cir.1968), (collecting cases in other jurisdictions; confession) ; United States v. Taglianetti, 274" }, { "docid": "23154354", "title": "", "text": "concur in the judgment because I do not believe that the totality of the circumstances reveals that Braxton’s will was overborne or that his capacity for self-determination was critically impaired. See United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987). K.K. HALL, Circuit Judge, dissenting: I join Judge Mumaghan’s dissent. I write separately only to emphasize that, in my view, the trooper’s “come clean or you’ll get five years” threat/promise was plainly false. Braxton had no obligation to say a single word to the authorities, let alone to “come clean,” and he could not have been punished for it had he silently shown his inquisitors to the door. MURNAGHAN, Circuit Judge, dissenting: I respectfully dissent from the majority’s opinion. Trooper Ballard’s threat that Braxton would face five years in jail if he did not “come clean” and confess and his implied promise that Braxton would not face jail time if he did confess were clearly sufficient “to cause [Braxton’s] will to be overborne and his capacity for selfdetermination to be critically impaired.” Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir.1977). I. The Supreme Court has held that when “a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the [F]ifth [A]mendment to the [C]onstitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897). The constitutional inquiry is not whether the conduct of the officers in obtaining the confession was shocking, but whether the confession was “ ‘free and voluntary.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram, 168 U.S. at 542, 18 S.Ct. at 187). More specifically, the test for determining whether a statement is voluntary is “whether the confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’” Hutto v. Ross," }, { "docid": "23163833", "title": "", "text": "illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” Spano v. New York, 360 U.S. 315, 320-21 [79 S.Ct. 1202, 1205-6, 3 L.Ed.2d 1265], Jackson, 378 U.S. at 386, 84 S.Ct. at 1785. In order to be voluntary, a confession must be “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Consequently, a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Id. at 7, 84 S.Ct. at 1493 (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at times more effectively, to overbear “a rational intellect and a free will.” As the Supreme Court noted in Malloy, “[w]e have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed.” 378 U.S. at 7, 84 S.Ct. at 1493 (citing Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963)). The government must prove that a confession is voluntary by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). On appeal, we must “examine the entire record" }, { "docid": "23080400", "title": "", "text": "1166, 22 L.Ed.2d 418 (1969). A plea of guilty is “more than a confession which admits that the accused did various acts.” Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. at 1711. If this is so, then at the very least those standards developed to test the voluntariness of confessions should apply to guilty pleas. In this field, classical coercion theory has developed a rigorous test: “the constitutional inquiry is * * * whether the confession was ‘free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). Therefore, any plea of guilty that was in fact induced by promises of leniency would be vulnerable to attack as an involuntary confession. This approach is in essence the one taken by the Fourth Circuit in Bailey v. MaeDougall, and by the two dissenting judges in Shelton v. United States. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), is the starting point for a second line of attack on plea bargaining. The Court there was dealing with a provision of the Federal Kidnapping Act that allowed only defendants who insisted on trial by jury to be sentenced to death. Rather than considering the effect of the statute on a particular defendant who had waived his rights, the Court examined the system as a whole. It held that the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. 390 U.S. at 583, 88 S.Ct. at 1217 (emphasis in original). It can hardly be denied that offering defendants shorter sentences (or, as in the case before us, a guaranteed escape from the death penalty) in exchange for pleas of guilty “encourages” such pleas. Under Jackson, then, the practice of plea bargaining can be constitutionally" }, { "docid": "21851780", "title": "", "text": "rev’d on other grounds sub nom. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (confession); United States v. Page, 302 F.2d 81, 83-84 (9th Cir. 1962) (consent to search; “clear and positive testimony”); cf. United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967) (government could “establish by clear and convincing evidence that the in-eourt identifications were based upon observations of the suspect” other than those made at the prior identification; reasons for standard not discussed). Still others have declared that “proof beyond a reasonable doubt” is required. Mullins v. United States, 382 F.2d 258, 261 (4th Cir. 1967) (confession); United States v. Inman, 352 F.2d 954, 956 (4th Cir. 1965) (confession); Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354, 360-364 (1966), cert. denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967) (concurring opinion) (confession) ; Pea v. United States, 397 F.2d 627, 633, n. 7 (D.C.Cir.1968), (collecting cases in other jurisdictions; confession) ; United States v. Taglianetti, 274 F.Supp. 220, 226 (D.R.I.1967) (electronic surveillance). Cf. Gillison v. United States, 399 F.2d 586, 588 (D.C.Cir. July 2, 1968) (state must show that line of questioning was harmless beyond reasonable doubt); United States v. Feinberg, 383 F.2d 60, 70, n. 10 (2d Cir. 1967), cert. denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836 (1968) (citing New York standard of beyond a reasonable doubt in confession cases) ; People v. Johnson, 68 Cal.Rptr. 599, 609, 441 P.2d 111, 121 (May 28, 1968) (state must show beyond reasonable doubt that erroneous admission of prior inconsistent statement constituted harmless error). Mathes and Devitt, Federal Jury Practice and Instructions, § 8.16 (1965) (jury to be instructed not to use confession unless satisfied beyond a reasonable doubt that it was voluntary). Finally, there are opinions eschewing the opportunity to fix a standard. See, e. g., Jackson v. Denno, 378 U.S. 368, 405, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (dissent) (question of weight of burden in confession cases left open); Pea v. United States, 397 F.2d 627, 639" }, { "docid": "8377897", "title": "", "text": "and that question [is] to be resolved in light of the totality of the circumstances.” Bryant v. Vose, 785 F.2d 364, 367-68 (1st Cir.1986), citing Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 489, 27 L.Ed.2d 524 (1971); see also United States v. Holmes, 632 F.2d 167, 168-69 (1st Cir.1980). The burden rests with the government to prove voluntariness by a preponderance of the evidence, Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626-27, 30 L.Ed.2d 618 (1972); Holmes, 632 F.2d at 169. The reviewing court must “ ‘examine the entire record and make an independent determination of the ultimate issue of voluntariness.’ ” United States v. Bienvenue, 632 F.2d 910, 913 (1st Cir.1980) (quoting Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976)). Jackson’s involuntariness claim is based exclusively on the contention that news of his sister’s arrest exerted psychological pressure sufficient to overcome his will and coerce the admission that he owned the bag in which the cocaine and gun were found. Our review convinces us that Jackson’s statements were voluntary. As the Supreme Court indicated almost a century ago, in a case still cited as controlling precedent on the voluntariness of confessions, for a confession to be voluntary it “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence ... ”, United States v. Bram, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897). See, e.g., Malloy v. Hogan, 378 U.S. 1, 6-7, 84 S.Ct. 1489, 1492-93, 12 L.Ed.2d 653 (1964); Miranda, 384 U.S. at 461-62, 86 S.Ct. at 1620-21; Brady v. United States, 397 U.S. 742, 754-55, 90 5.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970); Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203-04, 50 L.Ed.2d 194 (1976) (all citing to Bram, on voluntariness of confession). In the instant case there is no evidence that Jackson was subjected to direct threats or promises. Moreover, even if we were to assume that" }, { "docid": "12826448", "title": "", "text": "found that “[t]here can be little doubt that the prosecutor’s promise of leniency was an important consideration in Grades’ decision to make the confession.” The court erred, however, when it applied a standard derived from the dissenting opinion in Miranda v. State of Arizona, 384 U.S. 436, 507, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and held that the prosecutor’s promise did not amount to “unfair pressure.” In Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court ruled that the admissibility of a confession in state criminal trials is tested by the same standard that has been applicable to federal prosecutions since 1897 when the Court said: “[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence * (Emphasis added.) Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897). This is the standard which must be applied in the instant case. As Mr. Justice Harlan observed writing for the majority in Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347, 83 S.Ct. 448, 453, 9 L.Ed.2d 357 (1963), evidence “induced from a person under a governmental promise of immunity * * * must be excluded” because of the constitutional privilege against self-incrimination. “Evidence so procured,” he continued, “can no more be regarded as the product of a free act of the accused than that obtained by official physical or psychological coercion.” The State’s main contention is that the prosecutor’s comments must be construed as an abstract declaration of policy and not a promise directed to this particular defendant. Alternately, the State suggests, as did the District Court, that even if the prosecutor made a promise, it had only an attenuated causal connection with the confession. We reject both propositions. The State’s characterization of the prosecutor’s words is untenable. The perspective from which the statements must be viewed is that of the" }, { "docid": "17305551", "title": "", "text": "to extort a confession is a different matter.” 297 U.S., at 285, [56 S.Ct. at 464.] But this distinction was soon abandoned, and today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U.S. 187, [18 S.Ct. at 542,] the Court held that “[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Id., at 542 [18 S.Ct. at 186.] Under this test, the constitutional inquiry is not whether the conduct of state offi cers in obtaining the confession was shocking, but whether the confession was “free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence_” Id., at 542-543 [18 S.Ct. at 186-87]. 378 U.S. at 6-7, 84 S.Ct. at 1492-93 [citations omitted]. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court cited and quoted Bram at length in the course of holding that the privilege against self-incrimination protects an individual during custodial interrogation as well as during criminal court proceedings. The Court stated that This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897), this Court held: “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment ... commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” In Bram, the Court reviewed" }, { "docid": "8377898", "title": "", "text": "Our review convinces us that Jackson’s statements were voluntary. As the Supreme Court indicated almost a century ago, in a case still cited as controlling precedent on the voluntariness of confessions, for a confession to be voluntary it “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence ... ”, United States v. Bram, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897). See, e.g., Malloy v. Hogan, 378 U.S. 1, 6-7, 84 S.Ct. 1489, 1492-93, 12 L.Ed.2d 653 (1964); Miranda, 384 U.S. at 461-62, 86 S.Ct. at 1620-21; Brady v. United States, 397 U.S. 742, 754-55, 90 5.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970); Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203-04, 50 L.Ed.2d 194 (1976) (all citing to Bram, on voluntariness of confession). In the instant case there is no evidence that Jackson was subjected to direct threats or promises. Moreover, even if we were to assume that the police did use an implied “threat” or “promise” that Jackson’s sister might be caused or spared harm, depending on whether or not Jackson admitted ownership of the firearm, we still could not conclude that his will was overborne. Although Bram has not been overruled, it has been modified. The Congress and the courts have indicated that to determine voluntariness it is necessary to look at the totality of the circumstances, including any promises or threats made by police officers or the prosecution, in order to see whether the will of the accused was overborne. See, e.g., Bryant v. Vose, 785 F.2d at 367-68; 18 U.S.C. § 3501(b) (“The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession ... ”). Jackson relies in particular on Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), and United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), for the proposition that psychological coercion generated by concern for a loved one may make" }, { "docid": "1541724", "title": "", "text": "444, 475, 86 S.Ct. at 1612, 1628. Thus, for a confession to be constitutionally admissible against a defendant, the waiver of Miranda rights must have been voluntary in the sense that it was not “ ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). Additionally, the waiver “must have been made with a full awareness of the nature of the right being abandoned and the consequences of the. decision to abandon it.” Moran v. Burbine, — U.S. -, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986); see also Colorado v. Connelly, — U.S. —, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (confession “voluntary” where individual “understood” Miranda right but was unable to remain silent due to internal psychological compulsion not causally related to police coercion). In determining the validity of a waiver, a reviewing court must consider “ ‘the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.’ ” E.g., Edwards v. Arizona, 451 U.S. 477, 482-83, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Appellant bases his argument that his waiver of Miranda rights was not “voluntary” upon an officer’s alleged statements after the first interrogation session that appellant might be needed to serve as a witness and that appellant had “nothing to worry about.” Implicit in these comments, appellant claims, was a promise that he would not be prosecuted in return for his services as a witness against his codefendants. Furthermore, he argues, this belief that he would not be prosecuted was reinforced by newspaper articles that quoted officers as referring to him as a “key witness.” Finally, appellant claims that because the police both inculcated and cultivated his perception of his status as a" }, { "docid": "23080399", "title": "", "text": "and their attendant waivers of the rights to trial, to trial by jury, and against self-incrimination; or 2. The practice mentioned above is constitutional, and the plea was improperly rejected because the trial judge should have continued inquiring into the circumstances surrounding the tendered quilty plea to determine whether the defendant’s desire to plead guilty had a basis independent of his apparent desire simply to be transferred to an institution other than the D.C. jail. I. The practice of plea bargaining has been widely discussed, praised and damned. It is -vulnerable to at least two lines of constitutional attack. The first of these would focus upon the individual defendant. A plea of guilty operates as a waiver of the right to trial by jury, the right to confront and cross-examine one’s accusers, and the right against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L. Ed.2d 274 (1969). To be effective, any waiver of these rights must be “voluntary and knowing.” McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). A plea of guilty is “more than a confession which admits that the accused did various acts.” Boykin v. Alabama, supra, 395 U.S. at 242, 89 S.Ct. at 1711. If this is so, then at the very least those standards developed to test the voluntariness of confessions should apply to guilty pleas. In this field, classical coercion theory has developed a rigorous test: “the constitutional inquiry is * * * whether the confession was ‘free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), quoting Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). Therefore, any plea of guilty that was in fact induced by promises of leniency would be vulnerable to attack as an involuntary confession. This approach is in essence the one taken by the Fourth Circuit in Bailey" }, { "docid": "15975384", "title": "", "text": "claim the protection of the privilege against self-incrimination: In order to be voluntary, a confession must be “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Consequently, a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Id. at 7, 84 S.Ct. at 1493 (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at times more effectively, to overbear “a rational intellect and a free will.” United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). In the case before us, the magistrate found and the district court agreed that: (1) prior to the pre-sentence probation interview that resulted in appellee’s confession, appellee received written instructions, reiterated orally, that “[y]ou are here under court order and it is imperative that you follow all instructions, both in writing and as given you verbally;” (2) the interviewer questioned appellee about the crime of which he had been convicted “as well as any additional criminal activity for which the petitioner was responsible;” and, (3) “[p]etitioner’s admissions were the result of questioning by [the probation officer] rather than spontaneous statements by him.” The state does not offer, and we cannot discover, any basis on which to find these" }, { "docid": "15975383", "title": "", "text": "defendant to an individual acting on behalf of the state that exposed the defendant to serious consequences. Accordingly, we find the Fifth Amendment privilege against self-incrimination applicable to the state’s use of appellee’s probation interview. It does not follow necessarily from this conclusion that every encounter between the state and a convicted but unsentenced defendant brings the Fifth Amendment privilege into play. But, where, as here, the state’s agent seeks from the convicted defendant a confession of additional criminal activity and that confession is used to enhance a defendant’s sentence, we think it beyond peradventure that the defendant may properly claim the protection of the privilege against self-incrimination. As the Court noted in Estelle, “[g]iven the gravity of the decision to be made at the penalty phase, the state is not relieved of the obligation to observe fundamental constitutional guarantees.” 451 U.S. at 463, 101 S.Ct. at 1873. B. Voluntariness This court recently has articulated with considerable clarity the law relating to the voluntariness of a defendant’s confession when the defendant has a right to claim the protection of the privilege against self-incrimination: In order to be voluntary, a confession must be “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Consequently, a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Id. at 7, 84 S.Ct. at 1493 (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). Law" }, { "docid": "23154355", "title": "", "text": "Boyd, 566 F.2d 873, 877 (4th Cir.1977). I. The Supreme Court has held that when “a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the [F]ifth [A]mendment to the [C]onstitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897). The constitutional inquiry is not whether the conduct of the officers in obtaining the confession was shocking, but whether the confession was “ ‘free and voluntary.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram, 168 U.S. at 542, 18 S.Ct. at 187). More specifically, the test for determining whether a statement is voluntary is “whether the confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (alterations in original) (quoting Bram, 168 U.S. at 542-13, 18 S.Ct. at 187). The proper inquiry focuses on whether, as a matter of law, under the totality of the circumstances, “the defendant’s will has been ‘overborne’ or his ‘capacity for self-determination critically impaired.’ ” United States v. Pelton, 835 F.2d 1067, 1071 (4th Cir.1987) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)). I disagree with the majority opinion’s application of those principles in the instant case. Part II.B. of the majority opinion holds that Trooper Ballard’s “coming clean” statement did not constitute coercive police conduct. The majority points out that a law-enforcement officer may lawfully tell the defendant the truth. The majority then concludes that Trooper Ballard’s statement was not a coercive threat because he merely told Braxton the “truth,” namely, that he could serve five years in jail either for making a false statement on a firearms record, see 18 U.S.C.A. § 924(a)(1)(A) (West" }, { "docid": "12826447", "title": "", "text": "on more than one felony ease and as the matter stood at that time, he would be tried only on one case. * * * [A]nd he asked me whether or not I would put a habitual criminal — former convictions against him, and I don’t recall my exact answer to that, but I am positive that what I told him was, in view of the offense and the penalty connected therewith, I would in all probability not press the former convictions against him. * * * I told him that in all probability, he would not be tried, if he were tried or entered a plea of guilty [on this robbery charge], he would not be tried on any other indictment. It has never been my policy to try a felon on two felony charges.” (Emphasis added.) Immediately following this response, while still in an office of the prosecutor, Grades signed a six-page written confession which had been prepared in advance by one of the policemen. The District Court was manifestly correct when it found that “[t]here can be little doubt that the prosecutor’s promise of leniency was an important consideration in Grades’ decision to make the confession.” The court erred, however, when it applied a standard derived from the dissenting opinion in Miranda v. State of Arizona, 384 U.S. 436, 507, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and held that the prosecutor’s promise did not amount to “unfair pressure.” In Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court ruled that the admissibility of a confession in state criminal trials is tested by the same standard that has been applicable to federal prosecutions since 1897 when the Court said: “[A] confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence * (Emphasis added.) Bram v. United States, 168 U.S. 532, 542-543, 18 S.Ct. 183, 187, 42 L.Ed." }, { "docid": "6014978", "title": "", "text": "hit on the head — in other words, that he knows what lie’s doing and his action is a voluntary act.” Reprinted in Hearings on H.R. 11477 et al. Before a Subcommittee of the Senate Committee on the judiciary, 85tli Cong., 2d Sess. 411 (1958). . The detective testified that Dr. Tan said it was all right for the detective to talk to appellant. Dr. Tan had just finished taking appellant’s blood pressure — which as we know was normal. Presumably Dr. Tan’s remark meant that questioning would not worsen appllant’s condition. . Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). On Rehearing En Banc Before BAZELON, Chief Judge, and DANAHER, BURGER, WRIGHT, Mc- GOWAN, TAMM, LEVENTHAL and ROBINSON, Circuit Judges, sitting en banc. LEVENTHAL, Circuit Judge: On December 20, 1967, a division of this court found error in the District Court’s determination (made at 1966 Jackson v. Denno hearing held pursuant to the Supreme Court’s mandate), that appellant’s confession was voluntary. The division went on to rule that “it cannot fairly be found beyond a reasonable doubt that the confession was voluntary * * * [and] if that is the appropriate standard * * * a new trial must be held without introducing the confession in evidence.” En banc hearing was ordered by a majority of the active judges on their own motion to decide whether the reasonable doubt standard is the appropriate one. In Clifton v. United States, 125 U.S.App.D.C. 257, 371 F.2d 354 (1966), cert denied, 386 U.S. 995, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967), the court rejected the contention that in order to be admissible in evidence a confession must be found by the trial judge to be voluntary beyond a reasonable doubt. We overrule that pronouncement and, in the exercise of our supervisory power over the administration of federal criminal justice in the District of Columbia, adopt the rule that a judicial determination that a confession is-admissible cannot be made unless the judge is satisfied beyond a reasonable doubt that the confession was voluntary. The reasons which support" }, { "docid": "23154331", "title": "", "text": "The admissibility of Braxton’s statement turns on whether the statement was voluntary under the Fifth Amendment which guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself ... without due process of law.” U.S. Const, amend. V; accord Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (holding that when “a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the [Constitution of the United States commanding that no person ‘shall be compelled in any criminal case to be a witness against himself ” (quoting Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 186, 42 L.Ed. 568 (1897))). A statement is involuntary under the Fifth Amendment only if it is “involuntary” within the meaning of the Due Process Clause. See Oregon v. Elstad, 470 U.S. 298, 304, 105 S.Ct. 1285, 1290, 84 L.Ed.2d 222 (1985) (citing Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)). The test for determining whether a statement is voluntary under the Due Process Clause “is whether the confession was ‘extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’” Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (alterations in original) (quoting Bram, 168 U.S. at 542-43, 18 S.Ct. at 186-87). In Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), the Supreme Court held that “coercive police activity is a necessary predicate to the finding that a confession is not Voluntary’ within the meaning of the Due Process Clause.” Id. at 167, 107 S.Ct. at 521. The mere existence of threats, violence, implied promises, improper influence, or other coercive police activity, however, does not automatically render a confession involuntary. The proper inquiry “is whether the defendant’s will has been ‘overborne’ or" }, { "docid": "3921157", "title": "", "text": "is reviewed de novo. See United States v. Wolf, 813 F.2d 970, 974 (9th Cir.1987). Due process requires the exclusion of statements only when “government officials employed coercive interrogation tactics which rendered the defendant’s confession ‘involuntary’ as a matter of law.” Id. In order to be voluntary, a confession must be “the product of a rational intellect and a free will.” Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The fifth amendment secures “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). Consequently, a confession “must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” Id. at 7, 84 S.Ct. at 1493 (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). A confession is involuntary whether coerced by physical intimidation or psychological pressure. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at times more effectively, to overbear “a rational intellect and a free will.” Jones v. Cardwell, 686 F.2d 754, 757 (9th Cir.1982) (quoting United States v. Tingle, 658 F.2d 1332, 1335 (9th Cir.1981)), cert. denied, 440 U.S. 965, 99 S.Ct. 1513, 59 L.Ed.2d 780 (1979). The government does not challenge the district court’s factual findings but argues that the district court erred in concluding that the defendant was subject to psychological coercion rendering her statements involuntary. Applying the aforementioned legal standards, we find that, for the reasons given by the district court, it was proper to suppress as involuntary the statements made by the defendant before the appointment" }, { "docid": "213427", "title": "", "text": "case, however, is necessarily incomplete owing to the failure of the trial court to conduct inquiry outside the hearing of the jury on the issue of voluntariness. Although it would appear on this record that any statements appellant Powe made to Detective Yates were induced by offers of leniency, we are reluctant to reverse for a new trial until the government has an opportunity to prove the contrary. If, for example, the government were able to establish that Powe acknowledged her role in the drug transaction with Harris before Detective Yates suggested that her cooperation might prove beneficial, the claim of involuntariness might be overcome. Accordingly, we remand the record in this case to the district court for an evidentiary hearing and findings of fact on the voluntariness of appellant’s purported statements. So ordered. . The standard formulation of the voluntariness test is found in Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897): But a confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. * * * A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted. This test was recently reaffirmed by the Supreme Court in Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976) (per curiam). See generally Brady v. United States, 397 U.S. 742, 754, 90 S.Ct. 1463, 125 L.Ed.2d 747 (1970); Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Hopt v. Utah, 110 U.S. 574, 585, 4 S.Ct. 202, 28 L.Ed. 262 (1884); see also The King v. Warickshall, I Leach C.L. 263-264, 168 Eng.Rep. 234, 235 (K.B.1783) (to “a" }, { "docid": "1541723", "title": "", "text": "be excluded on fourth amendment grounds. III. VOLUNTARINESS Appellant further claims that the second statement should be excluded because his waiver of Miranda rights was ineffective. He argues that he gave the second, incriminating statement only because he previously had been asked by the police to serve as a witness, and thus believed that he was immune from prosecution. We conclude, however, that this contention is untenable given that the Miranda warnings administered to appellant fully informed him that any statement could and would be used against him. Under the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), police officers are required, inter alia, to inform individuals about to undergo custodial interrogation that the state intends to use their statements to convict them, that they have the right to remain silent, and that .they have the right to have counsel present during questioning. Id. at 468-70, 86 S.Ct. at 1624-26. An individual may effectively waive these rights “provided the waiver is made voluntarily, knowingly, and intelligently.” Id. at 444, 475, 86 S.Ct. at 1612, 1628. Thus, for a confession to be constitutionally admissible against a defendant, the waiver of Miranda rights must have been voluntary in the sense that it was not “ ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.Ed. 568 (1897)). Additionally, the waiver “must have been made with a full awareness of the nature of the right being abandoned and the consequences of the. decision to abandon it.” Moran v. Burbine, — U.S. -, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986); see also Colorado v. Connelly, — U.S. —, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (confession “voluntary” where individual “understood” Miranda right but was unable to remain silent due to internal psychological compulsion not causally related to police coercion)." } ]

[ { "docid": "22658948", "title": "", "text": "under like rules. The determination of what was such contributory negligence on the part of the deceased as would defeat this action, or, perhaps, more accurately speaking, the question of whether the deceased, at the time of the fatal accident, was, under all the circumstances of the case, in the exercise of such due care and diligence as would be expected of a reasonably prudent and careful person, under similar circumstances, was no more a question of law for the court than was the question of negligence on the part of the defendant. There is no more of an absolute standard of ordinary care and diligence in the one instance than in the other.' ¡This rule is sustained by the Michigan authorities, (Mynning v. Detroit &c. Railroad, 64 Michigan, 93; Underhill v. Chicago &c. Railway, 81 Michigan, 43; Baker v. Railroad Co., 68 Michigan, 90; Engel v. Smith, 82 Michigan, 1;) and its correctness is apparent from an .examination and analysis of the generally accepted definitions of contributory negligence, as laid down by the courts and by text-writers. Without going into a discussion of these definitions, or even attempting to collate them, it will be sufficient for present purposes to say that the generally accepted and most reasonable, rule of law applicable to actions in which .the defence is contributory negligence may be thus stated: Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause .of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years, .(having been first enunciated in Davies v. Mann, 10 M. & W. 546,) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the. .exercise'of reasonable care and prudence, have avoided the consequences of the injured party’s negligence. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, and case’s cited; Donohue" } ]

[ { "docid": "16065408", "title": "", "text": "are either not in a position to hear, or do not pay such attention as probably would enable them to hear, a warning of an approaching ear does not raise an issue of fact, and it is insufficient to withstand a motion for a directed verdict. Globe Indemnity Co. v. Stenger, 82 Colo. 47, 256 P. 658; Chicago & E. I. Ry. Co. v. Sellars (C. C. A.) 5 F.(2d) 31; Lehigh Valley R. Co. v. Mangan (C. C. A.) 278 F. 85. It is also clear that the evidence affords no support for the third specification of negligence. The street car,, as already stated, was driven at a lawful speed, and there was no evidence tending to show the facts essential to this ground of complaint, that the motorman discovered or negligently failed to discover the peril of appellants in time to stop the car and avoid the collision. Chunn v. City & Suburban Railway, 207 U. S. 302, 28 S. Ct. 63, 52 L. Ed. 219; Kansas City So. R. Co. v. Ellzey, 275 U. S. 236, 48 S. Ct. 80, 72 L. Ed. 259; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513. The Supreme Court, in Gunning v. Cooley, supra, restated the rule that a scintilla-of evidence is insufficient for submission to a jury and in connection with citations to and quotations from leading cases in that Ocourt, it was said: “Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury. * * * ‘When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.’ ” Applying the tests given in that ease, the conclusion is required that neither of the appellants made out a ease for the jury, and a verdict was properly directed for the" }, { "docid": "22057421", "title": "", "text": "jury had believed respondent’s evidence that this last car was astride the switch when it was thrown, it would have been authorized, under the court’s charge, to find for the respondent. But about 75 feet east of this switch, at a point where the south rail of the siding track intersected the north rail of the main track, there was a frog. There was testimony that this frog operated with a spring mechanism, and that if the spring failed to work when the wheels passed over it, the cars might be derailed. Some other evidence tended to show that, at the time the derailment occurred, splinters and planks were thrown into the air near the frog. Other evidence tended to show that planks and splinters were found on the track. Some testimony showed that they were close to the switch, and some that they were close to the frog. There was evidence that the frog and switch had been in good condi tion before the derailment and after the derailment. The cars had been operated and the tracks had been used previously, so far as the evidence showed, without any similar mishap. In San Juan Light Co. v. Requena, 224 U. S. 89, 98-99, this Court said: “when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” Both prior to and after that case was decided, this Court has acted upon this rule in varying types of cases. Transportation Co. v. Downer, 11 Wall. 129; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 555; Gleeson v. Virginia M. R. R., 140 U. S. 435; Sweeney v. Erving, 228 U. S. 233, 240. See also Southern Ry. v. Bennett, 233 U. S. 80; Foltis, Inc. v. City of New York, 287" }, { "docid": "7929612", "title": "", "text": "be obliviousness to it. With this I cannot agree, nor do I think that the authorities cited by the majority support their conclusions. Inescapable peril, or obliviousness to peril, may waken into action this doctrine, but I cannot agree to limit its scope to the presence of one of these conditions. It is much broader. For my position, I cite the following cases: Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chunn v. City & Suburban Railway of Washington, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; Hawley v. Columbia Ry. Co., 25 App.D.C. 1; Capital Traction Co. v. Divver, 33 App.D.C. 332; Baltimore & O. R. Co. v. Griffith, 34 App.D.C. 469; Washington Railway & Elec. Co. v. Cullember, 39 App.D.C. 316; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679; Kelly Furniture Co. v. Washington Ry. & Elec. Co., 64 App.D.C. 215, 76 F.2d 985; Boaze v. Windridge & Handy, 70 App.D.C. 24, 102 F.2d 628; Porto Rico Ry. Light & Power Co. v. Miranda, 1 Cir., 62 F.2d 479; Arnold v. Owens, 4 Cir., 78 F.2d 495; Linde Air Products Co. v. Cameron, 4 Cir., 82 F-2d 22; Kansas City Southern Ry. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259 (which re-states the doctrine, but holds it inapplicable therein). I am of the opinion that the prayer was not defective in the particulars stated; that refusal to instruct on this issue was prejudicial error, and the judgment should be reversed and the case remanded for new trial." }, { "docid": "22239999", "title": "", "text": "that the plaintiff was guilty, of contributory negligence. That issue with the others in the case should have been submitted to the jury with appropriate instructions. Nor is it clear that, even if the plaintiff.was not free from fault, her negligence was the proximate cause of ■ the injury. If she- carelessly placed herself in, a position exposed to danger, and it was discovered by the defendant in time to have avoided the injury by the use of reasonable care on its'par.t, and the defendant failed to use such care, that failure might be found to be the sole' cause of the resulting injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Washington & Georgetown Railroad v. Harmon, 147 U. S. 571, 583; Tuff v. Warman, 5 C. B. N. S. 573; Radley v. London & North Western Railway Co., 1 App. Cas. 754; Thompson on Negligence (2d ed.), §§238, 239; Pollock on Torts (6th ed.), pp. 441 to 447 inclusive. The judgment is -reversed and the case remanded to the Court of Appeals, with directions to reverse the judgment of the Supreme Court of the District of Columbia, and remand the cause to that court with a direction to set aside the verdict and award a new trial." }, { "docid": "16065407", "title": "", "text": "ordinance required the warning 50 feet from the crossing. Gilstrap failed to state definitely when or where he listened for the hell. Miss Summers, one of the plaintiffs, stated she did not see or hear any street ear, paid no attention where they were going and was not watching for ears or automobiles, and the first she knew of this ear was when it struck her. The other plaintiff, Miss Rice, stated she did not hear or see the car, and only knew of the crash. The motorman testified he sounded the bell. The three passenger witnesses testified they heard it. And Bruce further testified that when he was on Marion avenue he heard the car coming and the bell ringing a quarter or tliird of a block from the corner of Fourth avenue, and ran to catch the ear, but did not reach it in time. Thus, the testimony of the defendant was positive. That of the plaintiffs was negative in character, but such testimony when given as in this ease by witnesses who are either not in a position to hear, or do not pay such attention as probably would enable them to hear, a warning of an approaching ear does not raise an issue of fact, and it is insufficient to withstand a motion for a directed verdict. Globe Indemnity Co. v. Stenger, 82 Colo. 47, 256 P. 658; Chicago & E. I. Ry. Co. v. Sellars (C. C. A.) 5 F.(2d) 31; Lehigh Valley R. Co. v. Mangan (C. C. A.) 278 F. 85. It is also clear that the evidence affords no support for the third specification of negligence. The street car,, as already stated, was driven at a lawful speed, and there was no evidence tending to show the facts essential to this ground of complaint, that the motorman discovered or negligently failed to discover the peril of appellants in time to stop the car and avoid the collision. Chunn v. City & Suburban Railway, 207 U. S. 302, 28 S. Ct. 63, 52 L. Ed. 219; Kansas City So. R. Co. v. Ellzey," }, { "docid": "23142761", "title": "", "text": "Suburban Ry., 207 U. S. 302 .... The plaintiff’s right to recover was not barred' if his negligence was only a remote, cause of his injury, and Merchant’s negligence was the sole proximate cause of it.” This language suggests that the circuit court of appeals thought this case to be governed by the doctrine of the last. clear chance. That doctrine, rightly applied in the Chunn case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident. Grand Trunk Ry. v. Ives, 144 U. S. 408, 428; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558. In the cases applying the rule the parties have been engaged in independent courses of negligent conduct. The classic instance is that in which the plaintiff had improvidently left his animal tied in a roadway where it was injured by the' defendant’s negligent operation of his vehicle. Davis v. Mann, 10 M. & W. 546. It rests on the assumption that he is the more culpable, whose opportunity to avoid the injury was later. On the facts assumed by the circuit court of appeals— that Merchant was driving the car recklessly with respondent’s encouragement or acquiescence — the respondent and Merchant were engaged in a common venture which, acting together,'they were carrying on in a careless manner. In such a case their courses of conduct are not sufficiently independent to let it be said that either one or the other had in fact a later opportunity to avoid the consequences of their joint negligence. Compare St. Louis & San Francisco Ry. v. Schumacher, 152 U. S. 77; Wheelock v. Clay, 13 Fed. (2d) 972; Kinney v. Chicago, Great Western R. R., 17 Fed. (2d) 708; Denver City Tramway Co. v. Cobb, 164 Fed. 41. We think that the doctrine of the last clear chance was not involved here. If the jury found negligence on the" }, { "docid": "7684249", "title": "", "text": "'injured that he died in a few hours. It is conceded that the defendant was guilty of negligence in running its trains through an incorporated town at a speed forbidden by the statute. Railroad Co. v. Toulme, 59 Miss. 284; Nelson v. Railroad Co., 40 C. C. A. 673, 100 Fed. 731. The controlling question in the case is: Does the evidence show such contributory negligence on the part of the deceased as left nothing to be passed on by the jury, but required the court to instruct them as matter of law that the plaintiff could not recover? The burden of proof is on the defendant to show that the deceased was negligent, and that his negligence contributed to the injury which resulted in his death. Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railroad Co. v. Volk, 151 U. S. 73, 77, 14 Sup. Ct. 239, 38 L. Ed. 78; Hough v. Railroad Co., 100 U. S. 213, 225, 25 L. Ed. 612; Railroad Co. v. Harmon’s Adm’r, 147 U. S. 581, 13 Sup. Ct. 557, 37 L. Ed. 284. This rule governs in the United States courts, irrespective of the decisions in courts of the state where the federal courts are held. 2 Fost. Fed. Prac. (3d Ed.) p. 880, § 375. In the absence of all evidence on the subject, it would not be presumed that the deceased did not exercise proper care, for he had the greatest incentive to caution to protect his own life. Improvement Co. v. Stead, 95 U. S. 161 (4), 24 L. Ed. 403. But the defendant can, of course, avail itself of the evi dence offered by the plaintiff as tending to show the contributory negligence of the deceased. Railroad Co. v. Horst, 93 U. S. 291 (9), 23 L. Ed. 898. But on all the evidence the rule of the federal courts is that the burden of proof is on the defendant to sustain by a preponderance of evidence its defensive plea of contributory negligence. Railroad Co. v. Mares, 123 U." }, { "docid": "7929611", "title": "", "text": "v. Capital Transit Company, 1938, 69 App.D.C. 147, 99 F.2d 380; Kabler’s Adm’r v. Southern R. Co., 1917, 121 Va. 90, 92 S.E. 815; Wilson’s Adm’x v. Virginia Portland R. Co., 1917, 122 Va. 160, 94 S.E. 347; Harper, Torts (1933) § 140; Restatement, Torts (1934) §§ 479, 480. Since it is at least doubtful whether the facts of the present case justify application of the doctrine, we do not think we should undertake to discuss it in detail at this time. Affirmed. VINSON, Associate Justice (dissenting). The appellants requested an instruction upon the doctrine of the last clear chance as set out in their prayer No. 1. In the original opinion, we held that the refusal to grant this prayer was correct; that the prayer was defective “in that it does not require either that the peril of the plaintiff Lottie Stewart be inescapable, or that she be oblivious to it.”, .On rehearing the majority decide that, before the doctrine of last clear chance may be invoked, the peril must be inescapable or there be obliviousness to it. With this I cannot agree, nor do I think that the authorities cited by the majority support their conclusions. Inescapable peril, or obliviousness to peril, may waken into action this doctrine, but I cannot agree to limit its scope to the presence of one of these conditions. It is much broader. For my position, I cite the following cases: Inland & Seaboard Coasting Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270; Grand Trunk Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485; Chunn v. City & Suburban Railway of Washington, 207 U.S. 302, 28 S.Ct. 63, 52 L.Ed. 219; Hawley v. Columbia Ry. Co., 25 App.D.C. 1; Capital Traction Co. v. Divver, 33 App.D.C. 332; Baltimore & O. R. Co. v. Griffith, 34 App.D.C. 469; Washington Railway & Elec. Co. v. Cullember, 39 App.D.C. 316; Terminal Taxicab Co. v. Blum, 54 App.D.C. 357, 298 F. 679; Kelly Furniture Co. v. Washington Ry. & Elec. Co., 64 App.D.C. 215, 76 F.2d 985; Boaze v." }, { "docid": "9858023", "title": "", "text": "sufficient to constitute a cause of action, and that the testimony of the plaintiff shows that he was guilty of contributory negligence.” The motion was denied and the defendant excepted. The question of contributory negligence thus presented is the principal one argued. In approaching its discussion it is wise to keep in mind two controlling principles of law. First. Contributory negligence is a defense in the United States courts. It is not incumbent upon the plaintiff to prove the exercise of due care and caution on his part, the burden being upon the defendant, to prove the absence of such care, namely, concurring negligence. Hough v. Railroad Company, 100 U. S. 213, 25 L. Ed. 612; Inland & Seaboard Coasting Company v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653, 35 L. Ed. 270; Railway Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Northern Pacific Railroad v. Amato, 144 U. S. 465, 12 Sup. Ct. 740, 36 L. Ed. 596; Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485. Second. As a general rule this question is for the jury. It is only where the evidence is practicably undisputed and the inferences deducible therefrom point to the conclusion that the plaintiff was at fault, and to that conclusion alone, that the court is justified in determining the question as a matter of law. Railway Company v. Woodson, 134 U. S. 614, 10 Sup. Ct. 628, 33 L. Ed. 1032; Dunlap v. Railroad Company, 130 U. S. 649, 9 Sup. Ct. 647, 32 L. Ed. 1058; Gard ner v. Michigan Central Railroad Company, 150 U. S. 349, 14 Sup. Ct. 140, 37 L. Ed. 1107. We are of the opinion that the trial court could not under these well known rules have directed a verdict for the defendant at the close of the plaintiff’s case. The account of the accident, sustained by three witnesses, was that when the plaintiff crossed the 28 foot driveway of Park avenue the defendant’s horse was 80 feet distant. If this be true it" }, { "docid": "10875570", "title": "", "text": "him, these facts might create a cause of action or.might excuse the contributory negligence which brought Starr into his position of peril. St. Louis & S. F. R. Co. v. Whittle, 20 C. C. A. 196, 74 Fed. 296; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270; Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219, and cases cited. On this subject we took occasion in the recent case of St. Louis & S. F. R. Co. v. Summers; 97 C. C. A. 328, 173 Fed. 358, to say: “The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track as precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to eminent peril and danger, and the railroad company, after actually discovering that condition, could, by the exercise of ordinary care, have stopped its train, or otherwise have avoided injuring him, and failed to do so. [Cases cited.] But in the application of this rule care must be taken to avoid undermining the rule of contributory negligence. Such negligence of the traveler in law fully exonerates the railroad company from the consequences of its original negligence, and some new and subsequent act of negligence must arise to create a cause of action; and tins new or secondary act must be established by proof, unaided by the former acts, which have been excused by the traveler’s contributory negligence.” The difference between a cause of action for the primary negligence and one for the secondary negligence referred to in that case is striking. In the first case, the defendant would be liable if by the exercise of reasonable care he ought to have known or anticipated plaintiff’s danger and failed to exercise ordinary care to avoid injuring him, but" }, { "docid": "23142760", "title": "", "text": "holding this instruction improper, pointed out portions of the evidence indicating that respondent’s conversations with Merchant, relied on to show that he urged or advised Mérchant to drive the motor car at a dangerous rate of speed, took place at. Carson and later at De Ridder, on petitioner’s line, and that the accident occurred after leaving De Ridder and while proceeding north from that point to Leesville. It pointed out- also that underthe qüotéd instruction the respondent ■could not have recovered if the jury found that he had Voluntarily remained on the car after he saw it. was being negligently run. The court considered this erroneous, saying: “Though the plaintiff was negligent .in the respect stated, if, as evidence adduced indicated, the defendant’s employee was aware of such negligence in time to have avoided the injury by the use of reasonable care, and he failed to use such care, that failure might be found to be the sole proximate cause of the injury, and plaintiff’s negligence be deemed a remote cause. Chunn v. City & Suburban Ry., 207 U. S. 302 .... The plaintiff’s right to recover was not barred' if his negligence was only a remote, cause of his injury, and Merchant’s negligence was the sole proximate cause of it.” This language suggests that the circuit court of appeals thought this case to be governed by the doctrine of the last. clear chance. That doctrine, rightly applied in the Chunn case, amounts to no more than this, that a negligent defendant will be held liable to a negligent plaintiff if the defendant, aware of the plaintiff’s peril or unaware of it only through carelessness, had in fact a later opportunity than the plaintiff to avert an accident. Grand Trunk Ry. v. Ives, 144 U. S. 408, 428; Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558. In the cases applying the rule the parties have been engaged in independent courses of negligent conduct. The classic instance is that in which the plaintiff had improvidently left his animal tied in a roadway where it was injured by" }, { "docid": "23131963", "title": "", "text": "criticism did not controvert that proposition but merely expressed in an unteehni-eal way that if the death was due to a defective instrumentality and no explanation was given, the plaintiff had sustained the burden. The instruction is criticized further as if the judge had said res ipsa loquitur — which would have been right or wrong according to the res referred to. The judge did not say that the fall of the engine was enougn, but that proof of a defect in appliances which the company was bound to use eare to keep in order, and which usually would be in order if due care was taken, was prima facie evidence of neglect. The instruction concerned conditions likely to have existed for some time (defective ash pan or damper on the engine and rotten wood likely to take fire), about whieh the company had better means of information than the plaintiff, and concerning whieh it offered precise evidence, which, however, did not satisfy the jury.” See, also, Western Transportation Company v. Downer, 11 Wall. 129, 20 L. Ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 S. Ct. 653, 35 L. Ed. 270; Patton v. Texas & Pacific R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; Kansas City, F. S. & M. R. Co. v. Stoner, 49 F. 209 (C. C. A. 8); Minneapolis Street Railway Co. v. Odegaard, 182 F. 56 (C. C. A. 8); North Jersey St. Ry. Co. v. Purdy, 142 F. 955 (C. C. A. 3); Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358 (C. C. A. 6). The maxim has .been applied in two eases growing out of accidents on escalators. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878; Hesemann v. May Dept. Stores Co., 225 Mo. App. 584, 39 S.W.(2d) 797. In two other cases growing out of escalator accidents, the maxim, however,, has not been applied. Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N. W. 1026; Conway v. Boston" }, { "docid": "10363890", "title": "", "text": "risks assumed by Crotty. Chicago, Milwaukee & St. Paul Ry. Co. v. Donovan, 87 C. C. A. 600, 160 Fed. 826. (2) If, with Crotty’s exposed position as one of the existing and known conditions affecting the conductor’s duty in the. premises, he negligently caused the train to come back in the manner just stated, and that was the immediate cause of the fatal injury, the fact that Crotty was negligent in taking such an exposed position was no defense to the action, in so far as it was grounded upon such supervening negligence of the conductor. Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 309, 28 Sup. Ct. 63, 52 L. Ed. 219; Louisville, etc., Co. v. East Tennessee, etc., Co., 9 C. C. A. 314, 317, 60 Fed. 993; Cincinnati Co. v. Whitcomb, 14 C. C. A. 183, 189, 66 Fed. 915. Upon this point, the case is readily distinguishable from St. Louis & San Francisco Ry. Co. v. Schumacher, 152 U. S. 77, 81, 14 Sup. Ct. 479, 38 L. Ed. 361, Illinois Central R. Co. v. Ackerman, 76 C. C. A. 13, 144 Fed. 959, and Denver City Tramway Co. v. Cobb (C. C. A.) 164 Fed. 41, wherein it conclusively appeared that it was within the power of the injured person, down to the moment of the injury, to avoid it by the exercise of reasonable care; for, practically speaking, while Crotty was attempting to hold the post in a proper position between the moving train and car, he was without power to take precautions for his own safety, and was dependent upon such as were taken by the conductor. \\ But it is urged that the charge relating to the supervening negligence of the conductor was first brought into the case by the amend-' ment to the petition allowed after our former judgment of reversal, that the limited period prescribed in the state statute for commencing actions such as this had then expired, and that the defense based upon the statutory limitation was conclusively established in so far as that charge" }, { "docid": "22735199", "title": "", "text": "and in a few other States, proof of plaintiff’s freedom from fault is a part of the very substance of his case. He must not only satisfy the jury (1) that he was injured by the negligence of the defendant, but he must go further and, as a condition of his right to recover, must also show (2) that he was not guilty of contributory negligence. In those States the plaintiff is as much under the necessity of proving one of these facts as the other; and as to neither can it be said that the burden is imposed by a rule of procedure, since it arises out of the general obligation imposed upon every plaintiff, to establish all of the facts necessary to make out his cause of action. But the United States courts have uniformly held that as a matter of general law the burden of proving contributory negligence is on the defendant. The Federal courts have enforced that principle even in trials in States which hold that the burden is on the plaintiff. Railroad v. Gladmon, 15 Wall. 401 (1), 407-408; Hough v. Railway Co., 100 U. S. 225; Inland &c. Co. v. Tolson, 139 U. S. 551 (4), 557; Washington &c. R. R. v. Harmon, 147 U. S. 581; Hemingway v. Ill. Cent. R. R., 114 Fed. Rep. 843. Congress in passing the Federal Employers’ Liability Act evidently intended that the Federal statute should be construed in the light of these and other decisions of the Federal courts. Such construction of the statute was, in effect, approved in Sea Board Air Line v. Moore, 228 U. S. 434. There was, therefore, no error in failing to enforce what the defendant calls the Vermont rule of procedure as to the burden of proof. 5. There are, however, a series of assignments in this record which must be disposed of in conformity with the general principle that matters affecting the remedy are to be governed by the law of the forum. They are all based on the fact that, while the Railway Company had lines running through Massachusetts" }, { "docid": "22538050", "title": "", "text": "so enlarged upon this doctrine that we are confronted with such a situation as this: A poor fellow working in a yard, intent upon his work, and somebody kicks a car on top of him, and the courts, notwithstanding he has no knowledge of it, if he is struck, hold that he has no right to recover. It may be that he was negligent, but again I say the comparative negligence doctrine should be applied.” Hearings, Note 12, supra, p. 78. H. R. 4988, 76th Cong., 1st Sess. House Report, Note 14, supra, p. 6. Senate Hearings, Note 12, supra, p. 61. Senate Hearings, Note 12, supra, 14, 17, 76, 81. Supra, Note 20. Railroad Co. v. Jones, 95 U. S. 439, 442; Texas & Pacific Ry. Co. v. Barrett, 166 U. S. 617, 619; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408. Sen. Report, supra, Note 21, p. 4. Washington & Georgetown R. Co. v. McDade, 135 U. S. 554, 572. See also Kane v. Northern Central Ry. Co., 128 U. S. 91, 95, 96; Hough v. Railway Co., supra, 225; Jacob v. New York City, 315 U. S. 752, 757. It appears to be the clear Congressional intent that, to the maximum extent proper, questions in actions arising under the Act should be left to the jury: “At the beginning this defense [assumption of risk] was deemed to be at most a jury question. But repeated holdings have encroached more and more upon the right of the employee and various new doctrines or amplifications of previous principles have tended constantly to treat this defense as one to be determined by the courts as ‘matter of law’ — taking it away from the jury; and the courts have decided now it is a question of law.” House Report, supra, Note 14, p. 1. Cf. Delaware, L. & W. R. Co. v. Koske, 279 U. S. 7, 11; Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 170. Mr. Justice Frankfurter, concurring: The phrase “assumption of risk” is an excellent illustration of the extent" }, { "docid": "23131964", "title": "", "text": "20 L. Ed. 160; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 S. Ct. 653, 35 L. Ed. 270; Patton v. Texas & Pacific R. Co., 179 U. S. 658, 663, 21 S. Ct. 275, 45 L. Ed. 361; Kansas City, F. S. & M. R. Co. v. Stoner, 49 F. 209 (C. C. A. 8); Minneapolis Street Railway Co. v. Odegaard, 182 F. 56 (C. C. A. 8); North Jersey St. Ry. Co. v. Purdy, 142 F. 955 (C. C. A. 3); Lee Line Steamers v. Robinson, 218 F. 559, L. R. A. 1916C, 358 (C. C. A. 6). The maxim has .been applied in two eases growing out of accidents on escalators. Petrie v. Kaufmann & Baer Co., 291 Pa. 211, 139 A. 878; Hesemann v. May Dept. Stores Co., 225 Mo. App. 584, 39 S.W.(2d) 797. In two other cases growing out of escalator accidents, the maxim, however,, has not been applied. Fuller v. Wurzburg Dry Goods Co., 192 Mich. 447, 158 N. W. 1026; Conway v. Boston Elevated R. Co., 255 Mass. 571, 152 N. E. 94. In the Michigan case, the plaintiff claimed that she was thrown down and injured by a peculiar motion of the escalator. The court refused to apply the maxim, saying: “But in making this contention counsel overlooks the fact that before this inference of negligence can be drawn, something more must be shown than the mere happening of the accident. In the ease before us there was no testimony, direct or indirect, as to any negligence in the construction or in the operation of the stairway.” In the Massachusetts case, the hand of a child six years old was caught beneath the moving hand belt of the escalator. No attempt was made to describe the mechanism of the conveyance, and there were attempts to prove specific negligence. The court said (255 Mass. 574, 152 N. E. 94): “The doctrine of res ipsa loquitur is not applicable* to the present ease. There is no description of the mechanism of the escalator or what , method, if any," }, { "docid": "23142762", "title": "", "text": "the' defendant’s negligent operation of his vehicle. Davis v. Mann, 10 M. & W. 546. It rests on the assumption that he is the more culpable, whose opportunity to avoid the injury was later. On the facts assumed by the circuit court of appeals— that Merchant was driving the car recklessly with respondent’s encouragement or acquiescence — the respondent and Merchant were engaged in a common venture which, acting together,'they were carrying on in a careless manner. In such a case their courses of conduct are not sufficiently independent to let it be said that either one or the other had in fact a later opportunity to avoid the consequences of their joint negligence. Compare St. Louis & San Francisco Ry. v. Schumacher, 152 U. S. 77; Wheelock v. Clay, 13 Fed. (2d) 972; Kinney v. Chicago, Great Western R. R., 17 Fed. (2d) 708; Denver City Tramway Co. v. Cobb, 164 Fed. 41. We think that the doctrine of the last clear chance was not involved here. If the jury found negligence on the part of the defendant, then their verdict turned on whether they thought the respondent was guilty of contributory negligence. Whether the instructions were sufficient in this respect is the only substantial question before us. The trial judge charged generally, in various forms, that respondent’s negligence, as a bar to recovery, must be found to have contributed “ proximately ” to the injury, and that if respondent counseled Merchant to run the car at a reckless rate of speed, and by reason of his encouragement Merchant negligently operated the car, and as a result of that negligent operation the injury occurred, “ or if he saw that the car was being negligently run, in' such a manner as with the knowledge that he had before him at the time a man placed in his position must reasonably have known that to continue in the situation he was in was dangerous without protesting or desisting and removing himself from the perilous situation at the earliest possible moment, then that would be an act of omission which would" }, { "docid": "22239998", "title": "", "text": "which infested the borders upon each side. A platform which would be wide enough for a child to walk in safety from the base of the Washington Monument to the steps of the Capitol, if elevated to extend from the summit of one to the dome of the other, would imperil the passage of the man of steadiest nerve. Nor Was the plaintiff necessarily wanting .in due care by taking her place between the tracks. It was the usual place from which entrance to the Washington car was made. It was safe enough under ordinary circumstances. It was. made unsafe only by reason of the defendant’s negligent act in running another car rapidly by. The plaintiff had the right to assume that the defendant would not commit such an act of negligence, and that when it stopped one car and thereby invited her to enter it, it would not run another rapidly by the place of her entrance and put her in peril. We think that it cannot be said, as a matter of law, that the plaintiff was guilty, of contributory negligence. That issue with the others in the case should have been submitted to the jury with appropriate instructions. Nor is it clear that, even if the plaintiff.was not free from fault, her negligence was the proximate cause of ■ the injury. If she- carelessly placed herself in, a position exposed to danger, and it was discovered by the defendant in time to have avoided the injury by the use of reasonable care on its'par.t, and the defendant failed to use such care, that failure might be found to be the sole' cause of the resulting injury. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551; Grand Trunk Railway Co. v. Ives, 144 U. S. 408, 429; Washington & Georgetown Railroad v. Harmon, 147 U. S. 571, 583; Tuff v. Warman, 5 C. B. N. S. 573; Radley v. London & North Western Railway Co., 1 App. Cas. 754; Thompson on Negligence (2d ed.), §§238, 239; Pollock on Torts (6th ed.), pp. 441 to 447 inclusive." }, { "docid": "10875569", "title": "", "text": "L. Ed. 485. The principle so invoked is undoubtedly sound and the facts referred to have been taken into consideration in reaching our conclusion on this issue. They disclose that Starr’s environment was not such as precluded the exercise of ordinary care by him, and that on the undisputed proof in the case he failed to exercise it. Argument is next made that there was sufficient evidence to go to the jury on the question whether, after the defendant discovered Starr’s actual peril, it failed to exercise ordinary care to avoid running over him. This is an issue not made by the pleadings, or, so far as we can discover, ever called to the attention of the trial court. ' It presupposes or concedes the existence of contributory negligence, and seeks to avoid its consequence by subsequent occurrences. If it were true that Starr was in a state of actual peril, that the defendant had actual knowledge of that peril, and after that knowledge was acquired failed to exercise ordinary care to prevent in jurying him, these facts might create a cause of action or.might excuse the contributory negligence which brought Starr into his position of peril. St. Louis & S. F. R. Co. v. Whittle, 20 C. C. A. 196, 74 Fed. 296; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 558, 11 Sup. Ct. 653, 35 L. Ed. 270; Chunn v. City & Suburban Ry. Co., 207 U. S. 302, 28 Sup. Ct. 63, 52 L. Ed. 219, and cases cited. On this subject we took occasion in the recent case of St. Louis & S. F. R. Co. v. Summers; 97 C. C. A. 328, 173 Fed. 358, to say: “The rule is well settled that, notwithstanding such contributory negligence of a traveler in crossing a railroad track as precludes recovery for the primary negligence of the railroad company in operating its train so as to bring about a collision with him, yet another and different cause of action arises in favor of the traveler if for any reason he is exposed to eminent" }, { "docid": "22735200", "title": "", "text": "plaintiff. Railroad v. Gladmon, 15 Wall. 401 (1), 407-408; Hough v. Railway Co., 100 U. S. 225; Inland &c. Co. v. Tolson, 139 U. S. 551 (4), 557; Washington &c. R. R. v. Harmon, 147 U. S. 581; Hemingway v. Ill. Cent. R. R., 114 Fed. Rep. 843. Congress in passing the Federal Employers’ Liability Act evidently intended that the Federal statute should be construed in the light of these and other decisions of the Federal courts. Such construction of the statute was, in effect, approved in Sea Board Air Line v. Moore, 228 U. S. 434. There was, therefore, no error in failing to enforce what the defendant calls the Vermont rule of procedure as to the burden of proof. 5. There are, however, a series of assignments in this record which must be disposed of in conformity with the general principle that matters affecting the remedy are to be governed by the law of the forum. They are all based on the fact that, while the Railway Company had lines running through Massachusetts and Vermont into Canada, the declaration contained no allegation that White was engaged in interstate commerce at the time of the collision. The Company made this the ground of a plea in bar. The Administratrix thereupon filed a Replication admitting that the deceased was engaged in such commerce at the time of his death. The Company demurred to the Replication on the ground that it was a departure from the cause of action under the state law and the assertion of a new cause of action under the Federal Employers’ Liability Law. This demurrer was overruled and after verdict the defendant made the same facts the basis of a motion in arrest of judgment. The evidence showed a liability under the Employers’ Liability Aefc, and without stopping to discuss whether, on general principles, the motion should not have been overruled because the declaration was amendable to conform to the proof (Grand Trunk Railway v. Lindsay, 233 U. S. 48; Toledo, St. L. & Western R. R. v. Slavin, 236 U. S. 454) it is sufficient" } ]

[ { "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": "23012982", "title": "", "text": "the vicinity of the two bags”); United States v. Mueller, 902 F.2d 336, 339 (5th Cir.1990) (affidavit stating detection of “strong chemical odor of those chemicals commonly used in the manufacture of Methamphetamine” along with other statements established probable cause); United States v. Romero, 692 F.2d 699, 703 (10th Cir.1982) (“Officer ... was an experienced policeman familiar with the odor of marijuana. This odor, combined with [other factors] gave the officers probable cause.... ”); see also United States v. McKneely, 810 F.Supp. 1537, 1543 (D.Utah) (“An unidentifiable [chemical] smell alone is not sufficient to create a reasonable suspicion.”), rev’d on other grounds, 6 F.3d 1447 (10th Cir.1993). For the foregoing reasons, we REVERSE and REMAND this case for proceedings consistent herewith. . The actual tape of Agent Small's encounter with Ms. Little was admitted into evidence in the district court, although a transcript made of the tape by the government was not admitted by the district court because of some apparent inaccuracies in its transcription. The transcript, but not the tape, was included in the record on appeal. We have supplemented the record on our own motion with the tape. Despite some suggestions to the contrary at oral argument of this case, the tape itself clearly indicates that Ms. Little consented when Agent Small first approached her and asked if he could speak with her. . The government asserts that Ms. Little's responses to Agent Small's questions about whether the bag was her \"only” bag amounted to a lie to Agent Small about her ownership of the blue suitcase, and that Agent Small knew she was lying. Ms. Little argues that the questions were ambiguous, and she interpreted them as questions about whether the small nylon bag in the roomette with her was her only piece of luggage in the room with her. The district court made no findings on this matter. . Agent Small testified that he never saw the dog alert to the small bag, but that another officer told him the dog had alerted to the bag. . Even though the Florida Supreme Court disavowed the express" }, { "docid": "21754975", "title": "", "text": "The convictions and sentences as to all defendants are AFFIRMED. xhis disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3. . Gaines and Wade were convicted in five K-Mart store robberies, Blackstone in one. . This was disputed by one witness, who testified that Gaines discussed using a gun while in her presence, although Gaines argues that her testimony is incredible for several reasons including the fact that she was in custody at the time. . See Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). . Gaines relies on the Second Circuit case United States v. Pedigo, where the court found that an indictment was impermissibly broadened when a prosecutor obtained a firearm conviction based on a coconspirator’s actions. 12 F.3d 618 (7th Cir.1993). Pedigo is distinguishable because the indictment there did not specify which firearms were part of the conspiracy count, and the indictment's separate firearm count referred only to the defendant's use of a firearm. The prosecutor argued to the jury that they could convict on uncharged firearms carried by a co-conspirator. Here Gaines was on notice that he was charged with an armed robbery conspiracy, and could be liable for his co-conspirators' use of firearms in furtherance of the conspiracy- . Alternatively, the district court was within its discretion by admitting this evidence on the grounds that it was \"inextricably intertwined’’ with the charged conspiracy. See United States v. Williams, 989 F.2d 1061, 1070 (9th Cir.1993) (holding that other acts evidence should not be evaluated under a 404(b) analysis when the uncharged conduct was part of a single criminal episode and the defendant was not indicted for all criminal acts)." }, { "docid": "23323174", "title": "", "text": "evidence the Government could present to shed light on the intended effect of Fleming’s actions. Whether there are other means of introducing evidence to support the point to which a witness would testify is a factor in assessing the probative value of that witness’s testimony. See Trevino v. Gates, 99 F.3d 911, 922 (9th Cir.1996). Fleming fails to articulate any improper use or inferences the testimony of Judge Coyle and Mrs. Coyle may have supported. He does not explain how their testimony may have misled or confused the jury. Without more, the fact that Judge Coyle and Mrs. Coyle were credible, sympathetic, or authoritative witnesses does not mandate a conclusion that their testimony would unduly prejudice Fleming. See United States v. 4.0 Acres of Land, 175 F.3d 1133, 1140-41 (9th Cir.), cert. denied, — U.S. —, 120 S.Ct. 582, 145 L.Ed.2d 484 (1999) (concluding that, where a judge had first hand knowledge of matters in issue, his testimony was relevant and not improperly prejudicial); cf. Trevino, 99 F.3d at 922 (affirming the exclusion under Rule 403 of a child plaintiffs testimony in a § 1983 action against police officers who killed her father because the girl would have been a highly sympathetic witness, because she was not born at the time of her father’s death and so knew nothing about the circumstances, and because she was able to introduce expert testimony regarding her distress at being deprived of her father, the one issue about which she would have testified). We conclude that the district court did not abuse its discretion in concluding that the probative value of the Coyles’ testimony was not substantially outweighed by the danger of undue prejudice. IV The United States Sentencing Guidelines Manual provides for a two to three point reduction in offense level for a defendant who “clearly demonstrates acceptance of responsibility for his offense.” U.S. Sentencing Guidelines Manual § 3E1.1. Fleming contends that the district court erred in concluding that he was ineligible for this reduction in offense level. We review for clear error a district court’s decision to deny a reduction for acceptance" }, { "docid": "8576638", "title": "", "text": "exceptional ones. DeLeon went to trial not to make a constitutional challenge to a statute or its applicability to him, id., but to argue that he was entrapped into committing the conduct underlying all three charges. Even though he admitted to counterfeiting at trial, he was doing so in hopes of convincing the jury that, “I did it but it was somebody else’s fault that I did it.” United States v. Rector, 111 F.3d 503, 508 (7th Cir.1997), overruled on other grounds by United States v. Wilson, 169 F.3d 418, 428 n. 9 (7th Cir.1999). The entrapment defense by its nature tends to negate an acceptance of responsibility, id.; blaming someone else for one’s own actions is not the sort of “genuine contrition” the acceptance of responsibility reduction seeks to reward, United States v. Woodard, 408 F.3d 396, 397 (7th Cir.2005). In saying this, we do not hold that all defendants who raise a defense of entrapment are consequently precluded from receiving an acceptance of responsibility reduction; in some rare instances, a defendant who alleges entrapment may demonstrate through her pretrial statements and conduct sincere remorse for her actions. See U.S.S.G. § 3E1.1 cmt. n. 2. That is not the case here, however, where DeLeon freely admitted that his “decision to go to trial on the counterfeiting charge as opposed to pleading guilty was [a] strategic one,” Reply Br. 4, told the court that he “was telling you everything you wanted to hear so I can get through the [pleading] proceedings,” Tr. 70, Dec. 21, 2006, and told the court only that he was sorry that “the decisions I made put me in the predicament to be entrapped, to be set up,” Tr. 85-86, Nov. 19, 2007. “[T]he 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 offenses in a moral sense.” United States v. Cunningham, 103 F.3d 596, 598 (7th Cir.1996) (quotations omitted). DeLeon formally pleaded guilty after the jury hung on the counterfeiting charge, but “pleading guilty eventually, rather than immediately," }, { "docid": "23278000", "title": "", "text": "the merits of Gonzalez’s appeal. III. Gonzalez contends the district court erred in denying him a downward adjustment for acceptance of responsibility under § 3E1.1 because it incorrectly ruled Gonzalez was required to state his reasons for committing the crime. He argues he was required only to show remorse and recognize his role in the commission of the crime, both of which he asserts he did. Gonzalez also argues that application note 3 to § 3E1.1 (1991) creates a presumption in favor of granting the reduction so long as “the defendant pleads guilty before the start of trial and truthfully admits ‘involvement in the offense and related conduct.’” (Appellant’s Br., at 18 n. 4.) The government counters that Gonzalez lied both to the Probation Department and the district court by telling them he committed the crime because Josephine Flores “had repeatedly asked him to assist her and that she would lose her life if he did not.” (Ap-pellee’s Br., at 20.) It asserts Gonzalez’s conduct of lying belies any words of remorse or regret and otherwise served as the basis of the district court’s ultimate determination that Gonzalez never fully accepted responsibility for his crimes. The government further contends Gonzalez’s reference to application note 3 to § 3E1.1 ignores the final part of the note, stating that evidence of a defendant’s guilty plea before trial and truthful admission of participation in the offense, in effect, may be disregarded if the defendant’s conduct is otherwise inconsistent with his acceptance of responsibility. Whether, for purposes of U.S.S.G. § 3E1.1, a person has accepted responsibility for a crime is a factual determination that this court will not disturb unless the district court’s decision is without foundation. United States v. Rosales, 917 F.2d 1220, 1222 (9th Cir.1990) (quoting United States v. Smith, 905 F.2d 1296, 1301 (9th Cir.1990)). Section 3E1.1(a) of the Guidelines provides: “If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.” Application notes to this section indicate it is appropriate to consider whether the defendant made a" }, { "docid": "14928617", "title": "", "text": "overcharging Vought for the cocaine Smith was supplying. On another occasion, Maurer, whom the district court found was attempting to leave the drug operation, refused to travel on a drug buy and tried to run away. In response, Vought chased her, brought her back at gunpoint, and beat her. A jury convicted Vought in June 1994 of twelve counts of controlled substance offenses, including conspiracy to distribute cocaine, continuing criminal enterprise in controlled substances, possession with intent to distribute cocaine, and distribution of cocaine; and two counts of money laundering. The district court sentenced Vought to life in prison. Vought timely appeals his conviction and sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. DISCUSSION I. CHALLENGES TO CONVICTION A Waived Issues Vought has waived two issues. First, after filing his brief in this court, Vought moved to withdraw his argument that the district court erred by denying his motion either to dismiss count I (conspiracy) or to preclude the intro duction of certain statements. This panel granted that motion on July 24, 1995. Second, although Vought stated in his opening brief that the district court erred by failing to suppress Vought’s January 15,1993 statement, he did not provide any argument on the issue. We accordingly deem the issue abandoned and decline to consider it. See United States v. Alonso, 48 F.3d 1536, 1544-45 (9th Cir.1995); Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir.1988). B.Suppression Motion Vought argues that the fruits of the warrantless searches of the Sophie Station Hotel room and his Anchorage apartment should have been suppressed. He asserts that the searches were impermissible because the parole officers who conducted the searches were acting as “stalking horses” for the police, thus enabling the police to circumvent the warrant requirement. “Whether or not a parole or probation officer is acting as a stalking horse is a question of fact, reviewed for clear error.” United States v. Richardson, 849 F.2d 439, 441 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988). Allen and Tanner had received information," }, { "docid": "22229064", "title": "", "text": "Application Cortes was entitled to a reduction for acceptance of responsibility “if [he] clearly demonstrate[d] acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The plain language of § 8E1.1 places the burden on Cortes to show he is deserving of the reduction. To meet that burden, Cortes must “manifest[ ] a genuine acceptance of responsibility for his actions.” United States v. McKinney, 15 F.3d 849, 852 (9th Cir.1994). If Cortes’s statements and conduct made it clear that his contrition was sincere, he was entitled to the reduction. See United States v. Hill, 953 F.2d 452, 461 (9th Cir.1991) (upholding acceptance of responsibility reduction where defendant was sincerely remorseful even though his expressions of remorse came at the “eleventh hour” — his sentencing hearing). If Cortes manifested appropriate contrition, exercise of his constitutionally protected rights cannot be held against him. See United States v. Vance, 62 F.3d 1152, 1157 (9th Cir.1995). In particular, Cortes was not required to forego his right to a trial by jury and plead guilty in order to receive the acceptance of responsibility reduction. Although a guilty plea is undoubtedly significant evidence of an acceptance of responsibility, if Cortes otherwise demonstrated sincere contrition, he remains eligible for the reduction. The application notes interpreting § 3E1.1 provide that “a defendant may clearly demonstrate an acceptance of responsibility ... even though he exercises his constitutional right to a trial.” This situation “may occur where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).” Id. Though this passage lists only two circumstances where the acceptance of responsibility reduction may apply despite a defendant proceeding to trial, it was not intended to be an exhaustive list. See McKinney, 15 F.3d at 852. We have held in several instances that even “a defendant who contests his factual guilt may ... be entitled to [the § 3E1.1] adjustment.” United States v. Mohrbacher, 182 F.3d 1041, 1042 (9th Cir.1999); see also McKinney, 15 F.3d" }, { "docid": "23618212", "title": "", "text": "609(a)(1) provides that evidence of a prior conviction is admissible if that crime was punishable by imprisonment in excess of one year and if the court determines that the probative value of the evidence outweighs its prejudicial effect. Fed. R. Evid. 609(a)(1). . The Hermanek panel limited its holding by stating, \"[w]e do not hold that a government expert ... can never be qualified to interpret coded drug conversations using words and phrases experienced for the first time in the prosecution at issue[,]” and that \"[t]he advisory committee’s note to Rule 702 ... approves such expert testimony where the 'method used by the agent is the application of extensive experience to analyze the meaning of the conversations.' ” Hermanek, 289 F.3d at 1096. . For example, the expert gave a lengthy explanation of how he interpreted \"diznerty” based on his understanding of a common speaking style in \"most black communities” where they \"will put an ‘e ' or 'ez in words, 'such as, I'm at his housez,' something like that. Just as a certain slang, certain words. And here[,] 'diznerty' is just a slang on dirty” (emphasis added). . An error is waived and unreviewable when a defendant both invites the error and affirmatively relinquishes or abandons a known right. United States v. Perez, 116 F.3d 840, 845 (9th Cir.1997) (en banc). . We clarified in Symington that \"the standard is any reasonable possibility, not any possibility whatever.” Symington, 195 F.3d at 1087 n. 5 (emphasis in original). Understanding that \" 'anything is possible in a world of quantum mechanics[,]’ ” we purposefully avoided fixing a standard that would \"prohibit juror dismissal [only where] there is no possibility at all that the juror was dismissed because of her position on the merits[.]\" Id. (quoting United States v. Watkins, 983 F.2d 1413, 1424 (7th Cir.1993) (Easterbrook, J., dissenting)). As we observed, such an unattainable standard would \"prohibit dismissal in all cases.” Id. . Moreover, the district court was in the best position to evaluate the juror's credibility when she stated that her religious convictions prevented her from deliberating in the case." }, { "docid": "12624782", "title": "", "text": "IRS agent); United States v. Ziglin, 964 F.2d 756, 758 n. 3 (8th Cir.1992) (same). Appellants’ reliance on United States v. Ellis, 951 F.2d 580, 585 (4th Cir.1991), is misplaced. In Ellis, the court of appeals simply rejected the government’s cross-appeal from a determination that the § 2C1.1 enhancement for benefit received does not permit the court to take into account benefits received by entities not participants in the bribery scheme. As the court put it, “[n]either the provision itself nor precedent requires that vicarious liability apply to § 2C1.1 calculations.” Id. at 585; see also United States v. Agostino, 132 F.3d 1183, 1197-98 (7th Cir.1997) (no increase in offense level on the basis of benefit to an unrelated third party). The rationale of Ellis does not apply where, as here, the calculation rests on the benefit received by the payers of the bribe. IV. DOWNWARD ADJUSTMENT FOR ACCEPTANCE OF RESPONSIBILITY Whether or not a defendant has accepted responsibility for his crime is a factual determination to which the clearly erroneous standard of review applies. See United States v. Innie, 7 F.3d 840, 848-49 (9th Cir.1993). McGirt contends that she was entitled to the two-level adjustment because she went to trial in good faith to present her entrapment defense, she did not testify, she did not obstruct justice and she submitted a letter to the court at sentencing expressing her remorse. However, McGirt’s conduct does not invoke any of the relevant considerations under U.S.S.G. § 3E1.1 Application Note 1 (1997). While “[c]onviction by trial ... does not automatically preclude a defendant from consideration,” and “[i]n rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to trial,” id. Application Note 2, nothing in the circumstances of this case required the district court to find that McGirt had “clearly demonstrate^] an acceptance of responsibility for [her] criminal conduct.” AFFIRMED. . Although their roles in the scheme and the amounts received by the two defendants differed, the district court found at sentencing that \"[McGirt] and Ms. Gillam were equally involved" }, { "docid": "21595066", "title": "", "text": "offense level 15 and a criminal history category I or whether the court had imposed a sentence within the range for an offense level 15 and a criminal history category II. Accordingly, we find that the upward departure based on under-representation of criminal history did not constitute plain error. III. Martinez-Gonzalez contends that the district court erroneously denied her a two-level downward adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3El.l(a). We review this essentially factual determination for clear error. United States v. Aichele, 941 F.2d 761, 767 (9th Cir.1991). Because the sentencing judge is “in a unique position to evaluate a defendant’s acceptance of responsibility,” her determination is entitled to “great deference.” U.S.S.G. § 3E1.1, comment, (n. 5). Martinez-Gonzalez directs us to the Commentary to Guideline § 3E1.1, which states that the entry of a guilty plea combined with “truthful admission of involvement in the offense and related conduct” will constitute significant evidence of acceptance of responsibility. U.S.S.G. § 3E1.1, comment, (n. 3). She asserts that she spoke candidly with the probation officer and expressed her remorse for her conduct in a letter to the court. The district court, however, found Martinez-Gonzalez’ version of the facts to the probation officer to be “truly incredible.” First, the appellant only admitted to smuggling aliens between January and March of 1990. She also stated that she only became involved because of a favor to a friend and the undercover agents’ encouragement. The court found that this contradicted her earlier statements to the agents that she had been involved in alien smuggling for twelve years. Cf. United States v. Smith, 905 F.2d 1296, 1301-02 (9th Cir.1990) (differing version of facts given to FBI and then to probation officer justified denial of two-point reduction for acceptance of responsibility). Second, irrespective of the contradictory statements, the district court found that the appellant’s “facts don’t make any sense.” E.R. at 33. The court found it difficult to believe that Martinez-Gonzalez could have organized a large load of aliens to transport within twenty-four hours of the agents’ first contact with her, as her statement to the" }, { "docid": "16805950", "title": "", "text": "and I’m gone? In fact, Burgos had testified neither that Mageno knew he was deported nor that she knew why. A jury convicted Mageno on the conspiracy charge, count one, but acquitted her of the other count against her, the October 7, 2010 methamphetamine distribution. The district court sentenced Mageno to 87 months in prison, followed by five years of supervised release. II Mageno’s central argument before us is that the government did not introduce sufficient evidence to support the jury’s verdict on the conspiracy charge. The government maintains that the evidence was sufficient, and we agree. But, commendably, the government raises, as a separate error, the prosecutors’ repeated misstatements during closing argument that Bur-gos had testified to Mageno’s knowledge of Burgos’s deportation for dealing drugs. Mageno did not object to the government’s misstatement of Burgos’s testimony at trial, did not raise this argument in her opening brief, and did not adopt it as a ground for reversal until oral argument. Should we consider the government’s error under these circumstances? We conclude that we should. Generally, an issue not raised before the district court may not be considered for the first time on appeal. See United States v. Robertson, 52 F.3d 789, 791 (9th Cir.1994); see also Manta v. Chertoff, 518 F.3d 1134, 1144 (9th Cir.2008). But there are exceptions, of which one is where “plain error has occurred and an injustice might otherwise result.” United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir.2005) (per curiam) (quoting Robertson, 52 F.3d at 791); see also Gaither v. United States, 413 F.2d 1061, 1079 (D.C.Cir.1969) (recognizing that courts “have noticed [prosecutorial] errors where they were not objected to at trial, or even on appeal”). Federal Rule of Criminal Procedure 52(b) provides that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” As laid out in United States v. Olano, “Rule 52(b) review-so-called ‘plain-error review’ — involves four steps,, or prongs’’: (1) “there must be an error or defect ... that has not been ... affirmatively waived[] by the appellant”; (2)" }, { "docid": "22748984", "title": "", "text": "the [Guidelines] commentary expressly allows for a downward adjustment for a courier convicted of possession with intent to distribute, provided his [or her] role and culpability in the trafficking scheme are sufficiently minor compared to that of the other participants.”). Coversup is ineligible for a minimal participant adjustment because he cannot satisfy the first prong of the Webster test. Although we have held that a defendant who is the “sole participant” in the offense of his or her conviction is not excluded from receiving a downward adjustment under § 3B1.2, such a defendant must produce evidence of his or her participation in a larger conspiracy to qualify for the reduction. See Webster, 996 F.2d at 212(ex-plaining that defendant “must, at a minimum” show that the relevant conduct for which he or she would “be otherwise accountable involved more than one participant”); United States v. Walker, 993 F.2d 196, 200 (9th Cir.1993) (affirming denial of adjustment whefe defendant was “the only defendant involved in both counts of conviction” and “no evidence of a larger conspiracy was offered at trial or at sentencing”). Coversup repeatedly disclaimed any involvement in the conspiracy in his arguments to the district court and on appeal. During his sentencing proceedings, Coversup objected to the PSR’s description of his offense because it included references to the conspiracy, and he urged the district court not to consider any evidence of the conspiracy in making its sentencing decisions. Additionally, in his briefing to this court, Coversup argued that he “clearly was not a participant in the overall, long standing [sic] conspiracy” but “was instead merely ‘in the wrong place at the wrong time.’ ” Coversup cannot avail himself of a downward adjustment for minimal participation in the larger methamphetamine conspiracy involving his co-defendants while asserting at the same time that he never participated in said conspiracy. The district court did not clearly err in declining to grant Coversup a § 3B1.2(a) minimal participant adjustment. 4 Like T. Walker, Renz contends that the district court clearly erred in calculating her base offense level using a drug quantity of 500 or more" }, { "docid": "22458357", "title": "", "text": "district court may not, therefore, deny a defendant a reduction for acceptance of responsibility based on the defendant’s attempt to suppress her or his custodial statement. Cf. United States v. Vance, 62 F.3d 1152, 1157 (9th Cir.1995) (“[T]he [district] court erred in holding it against Vance that he moved to suppress evidence before pleading guilty. Such a motion is an assertion of a constitutional right, and ... exercise of a constitutional right cannot be held against a defendant for the purposes of the adjustment [for acceptance of responsibility].”). The district court made no findings concerning whether Ochoa-Gaytan demonstrated contrition. Rather, it denied Ochoa-Gaytan a reduction for acceptance of responsibility only because he moved to suppress his custodial statements and proceeded to trial rather than plead guilty. We hold that the district court’s denial was legal error and so we vacate Ochoa-Gay-tan’s sentence. Because the factual question of whether Ochoa-Gaytan has accepted responsibility should be decided, in the first instance, by the district court, we remand for resentencing. On remand, the district court should determine whether Ochoa-Gaytan has shown contrition for his offense, notwithstanding the fact that he exercised his constitutional rights. See Sitton, 968 F.2d at 962. In making this determination, the court should specifically consider the factors set forth in the first application note to § 3E1.1. If the district court finds that Ochoa-Gaytan has accepted responsibility under § 3El.l(a), it should also award him the additional one-level adjustment under § 3El.l(b). The additional level is available to a defendant whose offense level is 16 or greater prior to the adjustment au thorized by § 3El.l(a) if the defendant has either “timely provid[ed] complete information to the government concerning his own involvement in the offense; or ... timely notified] authorities of his intention to enter a plea of guilty.” U.S.S.G. § 3El.l(b). In the case of a defendant who does not plead guilty, the central inquiry for § 3E 1.1(b) “is whether the confession was complete and timely.” United States v. Ruelas-Arreguin, 219 F.3d 1056, 1062 (9th Cir.2000) (internal quotation marks and citation omitted). “The third level of adjustment" }, { "docid": "23115341", "title": "", "text": "in denying him the reduction. We have found the acceptance of responsibility reduction appropriate in cases where the defendants’ contrition seemed far less genuine than McKinney’s. For example, in United States v. Johnson, 956 F.2d 894, 904 (9th Cir.1992), we vacated a sentence and instructed the district court to consider whether a defendant was entitled to the reduction where she pled not guilty only because she could not obtain a favorable plea bargain. Unlike McKinney, the defendant in Johnson could have entered a plea of guilty any time she wanted to; she only chose not to because she could not strike a deal on favorable terms. See also United States v. Rodriguez, 975 F.2d 999, 1008 (3rd Cir.1992) (vacating sentence for consideration of acceptance of responsibility reduction where defendants had gone to trial after the govern ment revoked its plea bargain agreement). In United States v. Hill, 953 F.2d 452, 461 (9th Cir.1991), we upheld a grant of the reduction because the district court found that the defendant was sincerely contrite despite the fact that his expression of remorse came at the “eleventh hour” — his sentencing hearing. McKinney, by contrast, expressed remorse for his conduct soon after his arrest, in his confession statement, in open court at trial, and at his sentencing hearing. McKinney’s failure to attempt to plead guilty to the conspiracy count does not change this analysis. Because a guilty plea is not a prerequisite for entitlement to the reduction, the failure to attempt to plead guilty to one count in a multiple count indictment is not fatal. McKinney clearly admitted and accepted responsibility for all of the culpable actions of which he was accused. The two charges to which he attempted to plead guilty formed the core of the government’s case. He admitted to armed bank robbery and using a weapon during a crime of violence, and he helped the police find the weapon used in the crime. Because it was undisputed that several people took part in the bank robbery, the admissions McKinney made were tantamount to an admission that he committed the conspiracy offense" }, { "docid": "9839047", "title": "", "text": "did not err by excluding the proffered expert’s testimony. C. Alibi Defense Ginn contends the district court erred by excluding his alibi evidence. This contention lacks merit. The evidence Ginn argues he was precluded from presenting was in fact presented during his trial. Sokly Hor, Ginn’s wife, testified that at the time of the Union Bank robbery (approximately 3:30 in the afternoon), Ginn was visiting her and their son at a park near her mother’s house. She testified Ginn arrived at noon and left the park at 3:00 or 3:30 p.m. She then dropped off them son with her sister at her mother’s house and she and Ginn went to eat at Burger King. She testified they left Burger King at 4:00 or 4:30 p.m. In addition, Hor’s sister, Soklorn Hor, testified that Ginn visited his wife and child on October 3rd. She testified that Sokly and Ginn left their son with her on that date at about 3:30 p.m. It is clear from the record that the district court did not exclude Ginn’s alibi evidence. D.Acceptance of Responsibility Ginn’s final argument is that the district court erred by refusing to grant him any downward adjustment of his sentence for acceptance of responsibility. He argues he accepted responsibility for the robbery of the Home Savings Bank and, therefore, he is entitled to a three-point downward adjustment under Sentencing Guideline Section 3E1.1. The district court refused to grant Ginn any downward adjustment because Ginn did not accept responsibility for both bank robberies. According to the district court’s interpretation of the Sentencing Guidelines, this made Ginn ineligible for any downward adjustment even though he pleaded guilty to the Home Savings Bank robbery. We review de novo the district court’s interpretation of the Sentencing Guidelines. United States v. Eaton, 934 F.2d 1077, 1078 (9th Cir.1991); see also United States v. Browmstein, 79 F.3d 121, 122 (9th Cir.1996). The issue before us is whether a defendant must accept responsibility for all crimes of which he is convicted to obtain an adjustment for acceptance of responsibility under section 3E1.1. We agree with the Third and" }, { "docid": "20402673", "title": "", "text": "that emphasized his size and strength. The instruction was likewise improper under United States v. Chapman, which clarified after Harrison’s trial that section 111 always requires proof of an assault. 528 F.3d 1215, 1222 (9th Cir.2008). Just as physical intimidation need not involve use of force, it will not always constitute assault. We cannot find the “strong and convincing evidence” of force or assault that might excuse this instruction under plain error review. See United States v. Alferahin, 433 F.3d 1148, 1158 (9th Cir.2006). The government suggests that the jury’s verdict on the third (state law) count of the indictment shows that it necessarily found the missing elements, but that count involved conduct at an entirely different time. Although the evidence under count 2 would have been sufficient to support the jury’s verdict, had the jury been properly instructed, it was ambiguous. Officer Kirby testified that she would not have ordered her dog to attack “without [Harrison] saying that he was going to do something to me,” but she also said she was “not a hundred percent confident that he said he was going to attack me.” And while at times Officer Kirby said that Harrison “started running” in her direction, at other times she said he merely “looked like he was starting to come running.” Certainly the evidence did not compel a finding of “force” under Sommerstedt — much less “assault” under Chapman. Because Harrison might not have been convicted absent error below, we reverse with respect to count 2. We need not decide whether the court erroneously instructed the jury that it could infer consciousness of guilt under count 2 from Harrison’s flight after his encounter with Officer Kirby. Ill Harrison also challenges the district court’s enhancement of his sentence for lying on the stand. We review for clear error, asking whether the district court could have found (1) that Harrison gave false testimony, (2) on a material matter, (3) with willful intent. United States v. Garro, 517 F.3d 1163, 1171 (9th Cir.2008). According to Harrison, the fact that he stuck to his story after trial shows that" }, { "docid": "22748977", "title": "", "text": "purposes because Morales had previously shown himself to be a credible witness. Additionally, even though there was no evidence directly corroborating Morales’s testimony at sentencing about T. Walker’s role in the drug pick-ups, there was other evidence establishing that she was significantly involved in the conspiracy: T. Walker was arrested with over forty-six grams of methamphetamine hidden on her person in pre-packaged amounts, and there was trial testimony that she had obtained sizeable amounts of methamphetamine and marijuana from D. Cantrell on at least two other occasions. Based on the record as a whole, we hold that the district court did not clearly err in attributing T. Walker with 500 or more grams of methamphetamine. 3 Coversup first asserts that the district court erred in refusing to give him a reduction for his acceptance of responsibility. Section 3EÍ.l(a) of the Guidelines provides for a two-level downward adjustment where “the defendant clearly demonstrates acceptance of responsibility for his offense.” While we review de novo the district court’s interpretation of the Guidelines, Kimbrew, 406 F.3d at 1151, “[a] district court’s decision about whether a defendant has accepted responsibility is a factual determination reviewed for clear error.” United States v. Velasco-Medina, 305 F.3d 839, 853 (9th Cir.2002) (internal quotation marks omitted). “[T]he determination of the sentencing judge is entitled to great deference on review” because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n.5. The district court denied Covers-up’s request for the acceptance of responsibility adjustment on the grounds that: (1) Coversup had gone to trial, not just to preserve his constitutional suppression claim, but also to deny factual guilt; and (2) Coversup had not truthfully admitted the conduct comprising the offense of conviction. We hold that the first ground cited by the district court was erroneous, but affirm its denial of the adjustment on the second ground. Although Coversup’s counsel acknowledged at the sentencing hearing that the acceptance of responsibility adjustment does not ordinarily apply to a defendant who chooses to go to trial, he argued that Coversup was nevertheless entitled" }, { "docid": "3871341", "title": "", "text": "the car which pursued Simons: Simons saw two figures, a witness to the accident saw two men get out, two men ordered from the waitress (and were picked up by a third); the police officer who stopped Watts saw two other men in the car. Though the government had one eyewitness identification of appellant—the waitress, whose memory was indistinct at the trial—the government’s case overwhelmingly contradicts Hardwick’s testimony that Hardwick acted alone. Therefore, appellant’s claim that he was improperly convicted on the charges related to the shooting are without merit and require no hearing. Last, the unchallenged convictions more than demonstrate the continuing criminal enterprise. The telephone charges provided relatively insignificant evidence (compared with, for example, appellant’s fingerprints on bags of heroin, the taped conversations with Simon, and the attempted shooting). That appellant may not have been involved with the one methamphetamine pickup does not challenge the extent of his involvement in other drug transactions. As appellant admits, much of the government’s case depends on the credibility of Simons. In convicting appellant, the jury consistently credited Simons’ testimony. Wendy Dawson’s proposed testimony does not challenge Simons’ credibility, much less the substantial evidence of appellant’s ongoing involvement in narcotics trafficking, and so does not challenge the CCE conviction on these grounds. Appellant can only be convicted of operating a continuing criminal enterprise if he acts “in concert with five or more other persons with respect to whom such person occupies a position of organizer....” 21 U.S.C. § 848(b)(2)(A). At argument, appellant suggested that, without the involvement of Johnson, there were fewer than five persons involved in the enterprise. The evidence introduced at trial shows otherwise. Hoskins managed the operation with appellant. They supervised indicted coconspirators Hardwick and Shank, and unindicted coconspirator Watts, as well as the informant Simons. Last, the tapes and other evidence — as well as her affidavit— make clear that Yasmin Rollins was well aware of appellant’s narcotics trafficking. The evidence also showed that, at appellant’s orders, she brought a gun to the hotel where he was hiding. Even if she were not a part of appellant’s enterprise" }, { "docid": "23391792", "title": "", "text": "or friendship.” Poehlman, 217 F.3d at 698 (quoting United States v. Davis, 36 F.3d 1424, 1430 (9th Cir.1994)). Here, Ortega would have testified that he did not realize at first that the “potential investors” from the United States were, in fact, money launderers for a major international drug operation; that when he arrived at the appointment, he was informed for the first time that his new business associates were actually operatives of the Cali cartel; that he understood Mendoza’s veiled threats to mean that he or members of his family would be murdered if he did not join the criminal conspiracy; and that it was these threats alone that caused him to agree to participate in the money laundering scheme. Although this version of the events is not particularly convincing, a defendant need present only “some evidence,” which may be “of doubtful credibility,” to create a factual issue that must be resolved by a jury. United States v. Soteb-Murillo, 887 F.2d 176, 178-79 (9th Cir.1989)(quotations omitted). A jury could have believed Ortega’s sworn testimony; if so, it could have concluded that Mendoza’s coercive threats constituted inducement because they created a substantial risk that an otherwise law-abiding person would commit a crime. This view of the evidence is strengthened by the fact that the district court allowed Kissel, a similarly situated defendant, to present an entrapment defense. Kissel’s evidence of government inducement appears to be no more convincing on its face than Ortega’s. The evidence presented at trial showed that Kissel arrived at the meeting with a detailed plan for structuring the money-laundering transactions to avoid detection, and that she lobbied Mendoza for his business. The videotape of her meeting with Mendoza shows her laughing and joking, apparently eager to participate in the criminal scheme. During her testimony, however, Kissel explained that her behavior at the meeting was just an act, meant to disguise her fear. She testified that she was petrified that she would be killed if she did not agree to join the conspiracy and that she could not contact the Mexican authorities because she believed that they were" }, { "docid": "23278002", "title": "", "text": "“voluntary and truthful admission to authorities of involvement in the offense,” U.S.S.G. § 3E1.1, comment, (n. 1(e)), and “the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility.” Id., comment, (n. 1(h)). Application note 3 states that an “[ejntry of a plea of guilty prior to the commencement of trial combined with truthful admission of involvement in the offense and related conduct will constitute significant evidence of acceptance of responsibility.” Id., comment, (n. 3). To qualify for this reduction, a defendant must demonstrate “some manifestation of ‘sincere contrition’ ... or ‘sincere remorse.’ ” United States v. Ramos, 923 F.2d 1346, 1360 (9th Cir.1991) (quoting U.S.S.G. § 3E1.1, comment, (n. 2), (backg’d.)). The sentencing judge’s decision to deny Gonzalez the reduction is set forth below: THE COURT: The prosecutor points out a very good point, he is not willing to accept full responsibility, he is now saying something, apparently, that he never said in the beginning the reason he did it. MR. CHAVEZ (Gonzalez’s attorney): My belief is that the acceptance of responsibility is he admits he did it at an early stage of the criminal proceedings. He is accepting full fairness of the crime that he is charged with. THE COURT: I am afraid, Mr. Chavez, I am going to deny him both of those. I won’t deduct two points for acceptance of responsibility. (Sent. tr. of Gonzalez, at 17-18) (emphasis added). The “now saying something, apparently, that he never said” to which the district court refers relates to Gonzalez’s statement to the probation officer that the reason he committed the crimes was to help Josephine Flores, who had told him that she would otherwise lose her life. The government argued, and the district court in effect agreed, that because he had never said this before, he was lying and thus not fully accepting responsibility for his crimes. In our opinion, the district court erred in denying Gonzalez the adjustment. Under § 3E1.1, Gonzalez was required to recognize and affirmatively accept personal responsibility for his criminal conduct. The record shows he did. He fully admitted his involvement in" } ]

[ { "docid": "22723226", "title": "", "text": "he claims was imposed upon him in violation of the United States Constitution. He can be rearrested at any time the Board or parole officer believes he has violated a term or condition of his parole, and he might be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, of the procedural safeguards that normally must be and are provided to those charged with crime. It is not rele vant that conditions and restrictions such as these may be desirable and important parts of the rehabilitative process; what matters is that they significantly restrain petitioner’s liberty to do those things which in this country free men are entitled to do. Such restraints are enough to invoke the help of the Great Writ. Of course, that writ always could and still can reach behind prison walls and iron bars. But it can do more. It is not now and never has been a static, narrow, formalistic remedy; its scope has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty. While petitioner’s parole releases him from immediate physical imprisonment, it imposes conditions which significantly confine and restrain his freedom; this is enough to keep him in the “custody” of the members of the Virginia Parole Board within the meaning of the habeas corpus statute; if he can prove his allegations this custody is in violation of the Constitution, and it was therefore error for the Court of Appeals to dismiss his case as moot instead of permitting him to add the Parole Board members as respondents. Respondent also argues that the District Court had no jurisdiction because the petitioner had left the territorial confines of the district. But this case is not like Ahrens v. Clark, 335 U. S. 188 (1948), upon which respondent relies, because in that case petitioners were not even detained in the district when they originally filed their petition. Rather, this case is controlled by our decision in Ex parte Endo, 323 U. S. 283, 304-307" } ]

[ { "docid": "22623911", "title": "", "text": "LaVallee, 391 U. S. 234, 238 (1968). In this case, the Court of Appeals held that a habeas petitioner may be “in custody” under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language “in custody” too far. Our interpretation of the “in custody” language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. In Jones v. Cunningham, 371 U. S. 236 (1963), for example, we held that a prisoner who had been placed on parole was still “in custody” under his unexpired sentence. We reasoned that the petitioner’s release from physical confinement under the sentence in question was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities. Id., at 242; see also Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara County, 411 U. S. 345 (1973); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973). We have never held, however, that a habeas petitioner may be “in custody” under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee, supra, strongly implies the contrary. In Carafas, the petitioner filed his habeas application while he was actually incarcerated under the sentence he sought to attack, but his sentence expired and he was unconditionally discharged from custody while his appeal from the denial of habeas relief below was pending before this Court. The State argued that the unconditional discharge rendered the case moot. We rejected this argument, holding that the “collateral consequences” of the petitioner’s conviction — his inability to vote, engage in certain businesses, hold public office, or serve as a juror — prevented the case from being moot. Id., at 237-238. We went on to" }, { "docid": "7935095", "title": "", "text": "relator or movant is not in custody.”), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960). Indeed, the Supreme Court stated in Carafas v. LaVallee that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.” 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added). Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains “in custody”), the Supreme Court has never gone so far as to hold that “a habeas petitioner may be ‘in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed,” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original). The rationale in such a case is that the “habeas petitioner suffers no present restraint from a conviction.” Id. at 492, 109 S.Ct. at 1926; see, e.g., Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir.1984) (holding that to confer habeas jurisdiction on petitioner, there must be significant deprivation of his liberty), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985). In sum, the habeas corpus statute confers jurisdiction to district courts to entertain habeas petitions for relief solely from persons who satisfy the status or condition of being “in custody” at the time the petition is filed, and a petitioner under supervised release may be considered “in custody.” Because in the instant matter Scanio filed his habeas petition on November 29, 1993, three days after his term of supervised release expired, we find that at the time of the fifing, he was not “in custody.” See Maleng, 490 U.S. at 491, 109 S.Ct. at 1925. Under these circumstances, Scanio was juris-dictionafiy barred from asserting his habeas corpus claim. We reject Scanio’s argument that Fed. R.Civ.P. 6(a) should be applied in this case to expand the time period" }, { "docid": "22433339", "title": "", "text": "be interposed to bar his claim. The thrust of this argument seems to be that application of the Heck doctrine would deprive Huey of a federal forum for his Eighth Amendment claim. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir.1991) (stating that pro se pleadings are to be construed liberally). Because he is no longer “in custody” for his disciplinary infraction, Huey cannot seek a writ of habeas corpus challenging the legality of his detention. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (stating that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.”); see also Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.”). And because he cannot obtain a favorable resolution of his disciplinary sanction via habeas, his § 1983 claim is non-cognizable. See Schilling v. White, 58 F.3d 1081, 1087 (6th Cir.1995) (“Even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.”). Thus, the doors of the federal courts are shut against Huey. This argument is not entirely without force. In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court considered whether the expiration of a habeas petitioner’s prison sentence mooted his claim that procedures used to revoke his parole violated due process. The Court held that the habeas petition was moot because, once the petitioner’s sentence had terminated, the petition no longer presented a case or controversy since petitioner was not able to show continuing “collateral consequences” of the parole revocation. See Spencer, 523 U.S. at 8, 118 S.Ct. 978. The petitioner argued, among numerous other contentions, that his habeas petition could not" }, { "docid": "18854495", "title": "", "text": "restraint is something less than close physical confinement,” id. at 238, 83 S.Ct. at 374, the Court stated: History, usage, and precedent can leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus. Id. at 240, 83 S.Ct. at 375 (emphasis added) Subsequently, in Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1574, 36 L.Ed.2d 294 (1973), the Court explicitly relied on the emphasized language in the above excerpt from Jones in holding that a defendant released on his own recognizance, subject to appearance at the pleasure of a magistrate, is in “custody” under the federal habeas statutes because “[h]e cannot come and go as he pleases.” Despite the breadth of these constructions of the custody requirement for habeas relief, the possibility that the requirement might be satisfied after the petitioner has served the sentence which he attacks (which appears to be the question in the present case) is not settled. The theory generally offered, which petitioner herein also asserts, is that the “collateral consequences” of the sentence infringe on the petitioner’s personal liberty (such as by precluding his choice of occupations) even though the sentence itself no longer restrains him. The only Supreme Court decision on point (albeit remotely) is Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). In Carafas, the petitioner sought habeas relief while in physical custody. Before the petition was finally adjudicated, petitioner’s sentence expired and he was discharged from intervening parole. Despite the termination of sentence, the Court proceeded to determine the merits of the petition “be cause... the ‘disabilities or burdens [which] may flow from ‘petitioner’s conviction ... ’ survive [] the satisfaction of the sentence imposed on him.” Id. at 237, 88 S.Ct. at 1559, quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946). However, the Carafas Court appeared to make it clear that it was only addressing" }, { "docid": "21641188", "title": "", "text": "corpus contains a claim for which he is “in custody” within the meaning of 28 U.S.C. § 2254. Although the Supreme Court has not -interpreted 28 U.S.C. § 2254 as requiring “that a prisoner be physically confined in order to challenge his sentence on habeas corpus,” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), “[t]he custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remer dy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a petitioner who had been released on his own recognizance pending the execution of sentence was “in custody” for the purposes of federal habeas corpus). As a result, “its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.” Id. The Supreme Court has also “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng, 490 U.S. at 490-91, 109 S.Ct. 1923 (holding that a petitioner could challenge an impending state-prison sentence be cause he was “in custody” for the purposes of federal habeas corpus). Collateral consequences of a conviction, such as the ability “to vote, engage in certain businesses, hold public office, or serve as a juror,” are therefore insufficient to satisfy the “in custody” requirement for habeas jurisdiction. Id. at 491-92, 109 S.Ct. 1923. Although Leslie is currently incarcerated, he is not seeking relief from the conviction or sentence upon which his confinement is based. He claims instead that, as it applies to him, Ohio’s sexual-predator statute is unconstitutional. As the magistrate judge’s Report and Recommendation points out, neither the Supreme Court nor the Sixth Circuit has confronted the question of “whether or not a sex offender’s subjection to state statutory classification, registration and community notification provisions is merely a collateral consequence of his conviction or, conversely, constitutes a severe" }, { "docid": "5391395", "title": "", "text": "unrelated sentence, see, e.g., Harrison v. Indiana, 597 F.2d 115, 117 (7th Cir.1979). However, the Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody* under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (emphasis added). Specifically, the Supreme Court held that even a liberal construction of the “in custody” requirement for purposes of federal habeas relief does not extend to the situation where a “habeas petitioner suffers no present restraint from a conviction.” Maleng, 490 U.S. at 492, 109 S.Ct. 1923. “The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). As a result, “its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.” Id. (1) Sex Offender Registration To the extent that petitioner argues that the sex offender registration requirement that resulted from his underlying conviction constitutes a restraint that satisfies the “in custody” requirement for habeas review of the underlying conviction, the Court rejects that argument. The Supreme Court has emphasized that collateral consequences of a conviction alone, as opposed to a sentence itself, are never sufficient to render an individual “in custody” for purposes of ha-beas corpus review. Maleng, 490 U.S. at 492-93, 109 S.Ct. 1923 (“Once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody* for the purpose of a habeas attack upon it.”). “Examples of ‘collateral consequences’ that do not render a petitioner in custody include the inability to obtain a license to engage in a particular profession, own or possess firearms, or hold public office.” People ex rel. Sherman v. People of State of Ill., No. 03 C 0385, 2006 WL 200189, at *1" }, { "docid": "5391401", "title": "", "text": "for his failure to register according to Oklahoma sex offender laws since his move from New York. He subsequently notified the Court in October 2007 of his release and the fact that he was subject to continuing probation as a result of the offense. To the extent that petitioner argues that this conviction in Oklahoma somehow resurrects his ability to challenge his underlying 1998 conviction because he is again “in custody” for habeas purposes, the Court finds that argument unpersuasive. In Maleng, the petitioner challenged his expired 1958 conviction and argued that it had been illegally used to enhance his 1978 conviction. 490 U.S. at 490-91, 109 S.Ct. 1923. As an initial matter, the Supreme Court noted that “[w]e have never held ... that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” 490 U.S. at 491, 109 S.Ct. 1923 (emphasis in original). Citing Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), the Court noted that “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” 490 U.S. at 492, 109 S.Ct. 1923. Moreover, the Court recognized that this rule does not change “merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted.” Id. However, the Court acknowledged that, because the petition could be construed as challenging the 1978 conviction itself (as enhanced by the allegedly invalid prior conviction), the “in custody” requirement was satisfied because that 1978 conviction had not expired. Id. at 493-94, 109 S.Ct. 1923. This Court concludes, under Maleng, that petitioner in the instant case has not satisfied the “in custody” requirement for purposes of challenging his 1998 conviction even though he has been subjected to penalties for failing to register as a sex offender. It is undisputed that the 1998" }, { "docid": "2020440", "title": "", "text": "D. Perry, United States Magistrate Judge for the Eastern District of Missouri. . It appears that Jones was on parole when he filed his habeas petition. (See R. at 9.) Parole status does not deprive a federal court of jurisdiction over a habeas petition, however, because a parolee is still \"in custody.” See 28 U.S.C. § 2254(a); Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963); Piercy v. Black, 801 F.2d 1075, 1077 n. 2 (8th Cir.1986). It further appears that Jones may have discharged his sentence since he filed the habeas petition. (See Resp’ts' Ex. A at 2.) A federal court retains jurisdiction over a habeas petition, however, so long as jurisdiction existed at the time the petition was filed. See Carafas v. LaVallee, 391 U.S. 234, 238-39, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968); Hanson v. Passer, 13 F.3d 275, 277 n. 1 (8th Cir.1994); see also Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (\"We have never held, however, that a habeas petitioner may be 'in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time the petition is filed.”). Therefore, we have jurisdiction to decide this appeal. .. Given that Jones's habeas claim was phrased in almost identical language as his state-court claim, our conclusions — that Jones did not raise a federal claim in his direct appeal but that he did raise a federal claim in his habeas petition— might appear contradictory at first glance. But these different conclusions are explained by the difference between the relatively unforgiving federal standard that governs our scrutiny of Jones's direct state-court appeal and the relatively lenient pleading requirements of the habeas rules. We essentially assume that state courts decide cases based on state law, so we require state-court litigants to raise federal claims explicitly; we essentially assume that a federal habeas petition invokes federal law, so we do not require a habeas petitioner to identify federal claims with more precision." }, { "docid": "894835", "title": "", "text": "the enhanced sentence for the 1977 conviction — at the time he filed his federal habeas petition. Consistently with the Sibron line of cases, the Supreme Court held in Carafas v. La-Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), that a habeas petitioner’s attack on the conviction pursuant to which he was in custody when he filed his petition was not made moot by the fact that he was released while his habeas petition was still pending: there were still substantial “‘disabilities or burdens [which] may flow from’ petitioner’s conviction [that gave him] ‘a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.’ ” Id. at 237, 88 S.Ct. at 1559 (quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196 (1946); first brackets by Cara-fas Court). Continuing to address the “in custody” requirement of the federal habeas corpus statutes —which was referred to by the Court as a more “substantial issue” than mootness in this type of case — the Court concluded that “once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on [the petitioner’s habeas corpus] application.” Id. at 238, 88 S.Ct. at 1560. We have frequently applied the Carafas rule to habeas cases in which the challenged conviction was the same conviction pursuant to which the petitioner was incarcerat ed when he filed his petition in the district court. The question presented by the case at bar, however, appears to be one of first impression. Essentially, it is this: may the rules of Sinclair v. Blackburn and Carafas be combined? That is, does a habeas petitioner satisfy the statutory “in custody” requirement when (1) he is no longer in custody pursuant to the conviction he attacks, and (2) he is no longer in custody pursuant to a conviction positively and demonstrably related to the conviction he attacks, although he was so in custody at the time he filed his petition? Despite broad language in" }, { "docid": "10609461", "title": "", "text": "is filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). As described, however, Petitioner continues to attack here the 1986 conviction. The state court record shows that Petitioner served his period of confinement for that conviction and was released therefrom as late as March of 1999. The record also shows that Petitioner is currently being held on new charges stemming from incidents which allegedly occurred on July 3, 2005. Since Petitioner is attacking a judgment for which his confinement has been fully served, he does not meet section 2254’s “in custody” requirement. See Maleng, 490 U.S. at 491, 109 S.Ct. 1923 (“We have never held ... that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.”). The fact that Petitioner may have had to register as a sex offender upon his release from prison does not change this result. To be sure, the Supreme Court has liberally construed the “in custody” language such that a petitioner need not necessarily be physically confined. See id. at 491-92, 109 S.Ct. 1923; Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 300-01, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984); Hensley v. Municipal Court, 411 U.S. 345, 348-50, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). See also Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285, (1963) (prisoner released on parole from unexpired sentence met the “in custody” requirement due to the nature of conditions placed on his release). As noted by Respondent, however, the few circuit courts to have addressed the issue have held that compulsory registration as a sex offender is a collateral consequence of conviction that does not meet the “in custody” requirement for habeas relief. See, e.g., Resendiz v. Kovensky, 416 F.3d 952, 959 (9th Cir.), cert. denied, — U.S. -, 126 S.Ct. 757, 163 L.Ed.2d 589 (2005); Leslie v. Randle, 296 F.3d 518, 521-22 (6th Cir.2002). This court need not address these particular decisions for at least two reasons. First, Petitioner" }, { "docid": "14567719", "title": "", "text": "in the original petition continue before this Court. Before discussing the merits of the case, this Court must determine if Petitioner is “in custody” for purposes of 28 U.S.C. §§ 2241(c) and 2254. As the Supreme Court held in Peyton v. Rowe, a prisoner serving consecutive sentences is “in custody” under any one of the sentences for purposes of § 2241(c)(3). Peyton, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968). A prisoner placed on parole is also considered “in custody” during the unexpired term of his sentence because his release from physical confinement is not unconditional. Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). However, a habeas petitioner is not “in custody” when the sentence imposed for that conviction has fully expired at the time his petition was filed. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Petitioner Reilly filed the Petition for Writ of Habeas Corpus after the sentence on the first count of corruption by threat against a public servant had been fully credited through time spent in jail prior to sentencing. Petitioner is currently serving a 30-year probation sentence and is only challenging this portion of his sentence. As the Supreme Court noted in Jones, this probationary restraint is within the meaning of “in custody.” Petitioner has exhausted his state remedies and is “in custody” for purposes of §§ 2241 and 2254, therefore, Petitioner’s claims on the remaining counts are properly before this Court. A. Constitutional Challenges to Florida Statutes In Ground one, Petitioner alleges that §§ 838.021, 836.10, and 790.10, Florida Statutes, are unconstitutionally vague and over-broad. In addition, Petitioner contends that § 838.021 violates his constitutional right of free speech and that it exceeds the power of the state legislature because it imposes an incarcerative sanction that is greater than the sanction possible for comparable federal law; that § 836.10 is in violation of the Eighth Amendment’s proscription against cruel and unusual punishment; and" }, { "docid": "5391394", "title": "", "text": "Dist. Att’y v. Coss, 532 U.S. 394, 401, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (holding that relief is generally unavailable through a writ of habeas corpus when a petitioner seeks to challenge a prior conviction for which the person is no longer “in custody”). As the Third Circuit has noted, “custody is the passport to federal habeas corpus jurisdiction.” United States ex rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d Cir.1971). Physical confinement is not necessary to satisfy the “in custody” requirement; for example, a petitioner who is on parole or serving a term of supervised release is considered to be “in custody” for purposes of federal habeas corpus statutes. See Earley v. Murray 451 F.3d 71, 75 (2d Cir.2006). The custody requirement is also met where a prisoner attacks any one of a number of sentences, see, e.g., Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and when a prisoner attacks an earlier conviction, the effect of which was to delay the start of his current unrelated sentence, see, e.g., Harrison v. Indiana, 597 F.2d 115, 117 (7th Cir.1979). However, the Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody* under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (emphasis added). Specifically, the Supreme Court held that even a liberal construction of the “in custody” requirement for purposes of federal habeas relief does not extend to the situation where a “habeas petitioner suffers no present restraint from a conviction.” Maleng, 490 U.S. at 492, 109 S.Ct. 1923. “The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). As a result, “its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither" }, { "docid": "6903568", "title": "", "text": "unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States”). The Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). Allen’s state sentence expired on June 21, 1996. As of June 22, 1996, Allen was no longer in state custody. Allen’s § 2254 petition attacking the validity of the state convictions was not filed until October 30, 1996. Allen maintains, however, that the Supreme Court’s decision in Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), suggests that Allen is still “in custody” under the expired state sentence for habeas corpus jurisdiction purposes. Alternatively, Allen argues that the “in custody” requirement is satisfied because on the date the § 2254 petition was filed, he was serving a federal sentence “enhanced” by the allegedly invalid state convictions. In Garlotte, the Court held that a series of consecutive sentences is to be treated as a “continuous stream,” so that a petitioner “remains ‘in custody’ under all of his sentences until all are served.” Id. at 41, 115 S.Ct. 1948. Accordingly, argues Allen, the district court had subject matter jurisdiction to consider his § 2254 challenge to the state convictions directly — without resort to the deferential construction rule announced in Cook. This argument is without merit. As we explained in Contreras v. Schiltgen, 122 F.3d 30 (9th Cir.1997), aff'd on add’l grounds, 151 F.3d 906, slip op. 8675 (9th Cir.1998), Gar-lotte applies only when the petitioner is still in the custody of the same sovereign responsible for the challenged conviction. See id. at 33. Here, Allen is no longer in state custody. Hence, Allen’s reliance on Garlotte is misplaced. Allen’s alternative argument that he is “in custody” under a federal sentence “enhanced” by the allegedly invalid state convictions derives" }, { "docid": "14567718", "title": "", "text": "criminal conviction. Alexander v. State, 477 So.2d 557, 559 (Fla.1985). The Eleventh Circuit found that Petitioner raised the facial challenges and the double jeopardy claims in his brief to the Florida Second District Court of Appeal which satisfied the requirements of 28 U.S.C. § 2254(c). See also Castille, 489 U.S. at 349-50, 109 S.Ct. at 1059-60. The Eleventh Circuit reversed and remanded this case to this Court on June 29, 1992 (Docket No. 33). A Federal Public Defender was appointed by Magistrate Judge George Swartz to represent Petitioner in this action on April 23, 1993 (Docket No. 42). A pre-evidentiary hearing conference was scheduled before Magistrate Judge Swartz for July 12, 1993 (Docket No. 43). However, Petitioner filed a Motion of Formal Notice of Self-Representation & Waiver of Counsel (Docket No. 44) and an Objection to Appointment of Counsel (Docket No. 45). Magistrate Judge Swartz granted Petitioner’s motions and found the case should proceed to a ruling on the merits by a United States Federal District Judge (Docket No. 46). II. DISCUSSION Petitioner’s issues raised in the original petition continue before this Court. Before discussing the merits of the case, this Court must determine if Petitioner is “in custody” for purposes of 28 U.S.C. §§ 2241(c) and 2254. As the Supreme Court held in Peyton v. Rowe, a prisoner serving consecutive sentences is “in custody” under any one of the sentences for purposes of § 2241(c)(3). Peyton, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968). A prisoner placed on parole is also considered “in custody” during the unexpired term of his sentence because his release from physical confinement is not unconditional. Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 377, 9 L.Ed.2d 285 (1963). However, a habeas petitioner is not “in custody” when the sentence imposed for that conviction has fully expired at the time his petition was filed. Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Petitioner Reilly filed the Petition for Writ" }, { "docid": "17856114", "title": "", "text": "record.... ” Pl.’s Ex. 1 at 6. We are satisfied that the sentencing judge for the 1990 conviction took into consideration Appellant’s simple assault conviction stemming from the events of June 25,1986. TV. We must now decide whether the District Court had subject matter jurisdiction over this habeas petition. Section 2254 confers jurisdiction on United States District Courts to entertain petitions for habeas corpus relief only from persons who are “in custody” in violation of the Constitution or laws or treaties of the United States. The Supreme Court has interpreted § 2254 as mandating that the petitioner be “in custody” pursuant to the conviction or sentence he seeks to attack at the time his petition is filed. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). A habeas petitioner does not remain “in custody” under a conviction “after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted.” Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). A petitioner does, however, satisfy the “in custody” requirement for federal habeas jurisdiction when he asserts a challenge to a sentence he is currently serving that has been enhanced by the allegedly invalid prior conviction. Id. at 493, 109 S.Ct. 1923. Moreover, in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Court held that a prisoner could attack in a federal habeas proceeding an allegedly unconstitutional conviction, even if he has served in entirety the sentence resulting from the conviction, if that conviction had an effect on a present sentence. See also Young v. Vaughn, 83 F.3d 72, 78 (3d Cir.1996) (holding that “a prisoner may attack his current sentence by a habeas challenge to the constitutionality of an expired conviction if that conviction was used to enhance his current sentence”). Although Appellant has already served the sentence resulting from the allegedly unconstitutional 1986 convictions and is currently serving a" }, { "docid": "22623912", "title": "", "text": "Hensley v. Municipal Court, San Jose-Milpitas Judicial Dist., Santa Clara County, 411 U. S. 345 (1973); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484 (1973). We have never held, however, that a habeas petitioner may be “in custody” under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee, supra, strongly implies the contrary. In Carafas, the petitioner filed his habeas application while he was actually incarcerated under the sentence he sought to attack, but his sentence expired and he was unconditionally discharged from custody while his appeal from the denial of habeas relief below was pending before this Court. The State argued that the unconditional discharge rendered the case moot. We rejected this argument, holding that the “collateral consequences” of the petitioner’s conviction — his inability to vote, engage in certain businesses, hold public office, or serve as a juror — prevented the case from being moot. Id., at 237-238. We went on to say, however, that the unconditional release raised a “substantial issue” as to the statutory “in custody” requirement. Id., at 238. While we ultimately found that requirement satisfied as well, we rested that holding not on the collateral consequences of the conviction, but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed. Ibid. The negative implication of this holding is, of course, that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual “in custody” for the purposes of a habeas attack upon it. The question presented by this case is whether a habeas petitioner remains “in custody” under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the" }, { "docid": "7935094", "title": "", "text": "on November 26, 1993. The record indicates that Scanio was released from incarceration on November 27, 1991. His two-year term of supervised release therefore commenced on November 27, 1991 and expired at midnight on November 26, 1993. Thus, we next consider whether Scanio met the requirements for filing a ha-beas corpus petition. Title 28 U.S.C. § 2255 states in pertinent part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... may move the court which imposed the sentence to vacate, set aside or correct the sentence, (emphasis added). In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional “in custody” requirement of 28 U.S.C. § 2255. See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir.) (“A district court is without jurisdiction to entertain a writ of habeas corpus or a § 2255 motion if the relator or movant is not in custody.”), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960). Indeed, the Supreme Court stated in Carafas v. LaVallee that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.” 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added). Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains “in custody”), the Supreme Court has never gone so far as to hold that “a habeas petitioner may be ‘in custody under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed,” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original). The rationale in such a case is that the “habeas petitioner suffers no present restraint from" }, { "docid": "22623910", "title": "", "text": "under the 1958 conviction, even though the sentence imposed for that conviction had expired, because it had been used to enhance the sentences imposed in 1978 for his 1976 state convictions, which he had yet to serve. Id., at 618-619. We granted certiorari to review this interpretation of the “in custody” requirement. 488 U. S. 941 (1988). We conclude that respondent is not presently “in custody” under the 1958 sentence, but that he is “in custody” under the 1978 state sentences which he has not yet begun to serve. The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2241(c)(3) (emphasis added); see also 28 U. S. C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be “in custody” under the conviction or sentence under attack at the time his peti tion is filed. See Carafas v. LaVallee, 391 U. S. 234, 238 (1968). In this case, the Court of Appeals held that a habeas petitioner may be “in custody” under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language “in custody” too far. Our interpretation of the “in custody” language has not required that a prisoner be physically confined in order to challenge his sentence on habeas corpus. In Jones v. Cunningham, 371 U. S. 236 (1963), for example, we held that a prisoner who had been placed on parole was still “in custody” under his unexpired sentence. We reasoned that the petitioner’s release from physical confinement under the sentence in question was not unconditional; instead, it was explicitly conditioned on his reporting regularly to his parole officer, remaining in a particular community, residence, and job, and refraining from certain activities. Id., at 242; see also" }, { "docid": "5391400", "title": "", "text": "on liberty that satisfies the' “in custody” requirement for purposes of Section 2254. See Williamson, 151 F.3d at 1184 (“[T]he constraints of this [sex offender registration] law lack the discernible impediment to movement that typically satisfies the ‘in custody’ requirement.”). Therefore, the Court holds that the fact that petitioner is subject to New York and Oklahoma sex offender registration requirements as a result of his underlying conviction does not constitute being “in custody,” such that it can permit federal habeas review of the expired underlying conviction. However, in the instant petition, petitioner claims that he was not only subject to these registration requirements, but that he also has been subjected to criminal penalties for failure to comply with such requirements. The Court now turns to whether the imposition of criminal penalties for failure to register changes the analysis and thereby satisfies the “in custody” requirement for habeas review of the underlying sex abuse conviction. (2) Criminal Penalties for Failure to Register Petitioner notified the Court that he was re-incarcerated on April 21, 2007 in Oklahoma for his failure to register according to Oklahoma sex offender laws since his move from New York. He subsequently notified the Court in October 2007 of his release and the fact that he was subject to continuing probation as a result of the offense. To the extent that petitioner argues that this conviction in Oklahoma somehow resurrects his ability to challenge his underlying 1998 conviction because he is again “in custody” for habeas purposes, the Court finds that argument unpersuasive. In Maleng, the petitioner challenged his expired 1958 conviction and argued that it had been illegally used to enhance his 1978 conviction. 490 U.S. at 490-91, 109 S.Ct. 1923. As an initial matter, the Supreme Court noted that “[w]e have never held ... that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” 490 U.S. at 491, 109 S.Ct. 1923 (emphasis in original). Citing Carafas v. La Vallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554" }, { "docid": "7706453", "title": "", "text": "enough to result in his being returned to prison to serve out the very sentence he claims was imposed upon him in violation of the United States Constitution.” Id.; see also Hensley v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (holding that a defendant released on his own recognizance before beginning his sentence was “in custody” because he was “subject to restraints not shared by the public generally” in that he had an “obligation to appear at all times and places as ordered by any court or magistrate of competent jurisdiction” and his “freedom of movement rest[ed] in the hands of state judicial officers, who may demand his presence at any time and without a moment’s notice” (internal quotation marks and alterations omitted)). Despite the limited expansion of the strict historical meaning of “in custody” brought about by Jones and later cases, the Supreme Court later cautioned that it had “never held ... that a habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed.” Maleng, 490 U.S. at 491, 109 S.Ct. 1923. Maleng recognized that although a petitioner is subject to the “collateral consequences” of a prior conviction, such as a sentencing enhancement in connection with a subsequent offense, he “suffers no present restraint from a conviction” and therefore is not in custody after fully serving his sentence. Id. at 492, 109 S.Ct. 1923. As the Court explained, “once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.” Id. It observed that a contrary ruling “would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the ‘in custody’ requirement out of the statute .... ” Id. In this case, it is undisputed that Wilson fully served his sentence and was unconditionally released from" } ]

[ { "docid": "11994612", "title": "", "text": "noted, section 227(b)(3) allows a person or entity “if otherwise permitted by the laws or rules of court of a State,” to sue in state court for a violation of the TCPA. As the district court correctly noted, “a class action for statutory damages under the TCPA is not actionable in New York state court.” Bonime, 2006 WL 3751219, *2, 2006 U.S. Dist. LEXIS 91964, at *5. Plaintiffs inability to bring such a class action stems from N.Y. C.P.L.R. 901(b), which provides that “Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.” Because the TCPA does not specifically authorize recovery of statutory damages in a class action, New York state courts have held that C.P.L.R. 901(b) bars class actions for statutory damages under the TCPA. See, e.g., Leyse v. Flagship Capital Servs. Corp., 22 A.D.3d 426, 426, 803 N.Y.S.2d 52 (1st Dep’t 2005); Rudgayzer & Gratt v. Cape Canaveral Tour & Travel, Inc., 22 A.D.3d 148, 149, 799 N.Y.S.2d 795 (2d Dep’t 2005); Weber v. Rainbow Software, Inc., 21 A.D.3d 411, 411, 799 N.Y.S.2d 428 (2d Dep’t 2005). Bonime’s decision to bring a putative class action in federal court under section 1332(d)(2)(A) is undoubtedly motivated by his desire to avoid the barrier erected by C.P.L.R. 901(b). This tactic, while inventive, fails. Bonime makes two major points in support of his position: (1) the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), under which state substantive law applies to state law claims in federal court, does not apply to his TCPA claims because TCPA claims arise under federal and not state law, and (2) even if Erie did apply, C.P.L.R. 901(b) is procedural, not substantive, and therefore does not apply to TCPA claims brought in federal court. Bonime’s arguments fail for two independent reasons. First, it is correct that the Supreme Court’s Erie doctrine" } ]

[ { "docid": "10897179", "title": "", "text": "CALABRESI, Circuit Judge: Background This case centers on the intersection of four laws: (a) the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, which provides a statutory penalty of $500 for each instance of unsolicited, commercial fax transmission and a federal cause of action “if otherwise permitted by the laios or rules of court of a State.” Id. § 227(b)(3) (emphasis added); (b) New York C.P.L.R. 901(b), which prohibits class-action suits seeking statutory damages; (c) Federal Rule of Civil Procedure 23, which authorizes class-action suits in federal courts when various criteria are met; and (d) the federal Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2)(A), which gives federal courts jurisdiction over class actions alleging at least $5 million of damages so long as there is minimal diversity among the parties. Alleging violations of the TCPA, Charles Holster sued Gateo, Inc. in federal court in a putative class action under Rule 23. He grounded federal jurisdiction in CAFA. Gateo moved to dismiss, claiming that, due to C.P.L.R. 901(b), a class action could not be maintained in New York. Relying on the TCPA’s “otherwise permitted” language, Gateo argued that, as a result, no suit could lie under the TCPA and therefore that CAFA could not apply. That meant, Gateo concluded, that the district court lacked jurisdiction. Agreeing, that court (Bianco, J.) dismissed the case. We affirmed in a summary order predicated on a case decided the same day, raising the same issue, Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir.2008). Holster v. Gatco, Inc., No. 07-2191-cv, 2008 U.S.App. LEXIS 23203 (2d Cir. Oct. 31, 2008). In Bonime we held that C.P.L.R. 901(b) applied to TCPA actions in New York for two, independent, reasons. First, we explained that “because Congress directed that the TCPA be applied as if it were a state law,” the Erie doctrine required federal courts to apply C.P.L.R. 901(b) to TCPA claims in New York. Bonime, 547 F.3d at 501. To hold otherwise, we said, “would create a predictable and foreseeable outcome-determinative difference that would strongly encourage forum shopping and create inequitable administration of the" }, { "docid": "13321265", "title": "", "text": "federal court.” Id. at 114. In reaching this result we recognized that our prior interpretation of section 227(b)(3) “as having ‘substantive content,’ [and] as a delegation of authority to state courts to set the terms of TCPA claims, no longer holds true.” Id. at 115 (internal citation omitted). Instead, Mims “suggests that in enacting the TCPA, Congress merely enabled states to decide whether and how to spend their resources on TCPA enforcement,” and, indeed, Mims “emphasizes that Congress had a strong federal interest in uniform standards for TCPA claims in federal court.” Id. at 114-15. Nothing about the law at issue here — a state civil procedure .statute prohibiting class-action claims for statutory damages — counsels a different result from that reached in Giovanniello. To the contrary, as we expressly recognized in Giovanniello, both rationales set forth in Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir.2008)— which held that CLPR § 901(b), not Federal Rule of Civil Procedure 23, governed TCPA class action suits — have now been rejected. Specifically, Bonime’s first rationale — that the Erie doctrine required application of state law class-action procedures — was overturned by the Supreme Court’s decision in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). See Giovanniello, 726 F.3d at 111. And Mims undermined the second rationale, which relied on jurisdictional interpretations of section 227(b)(3). See id. at 112-13. Accordingly, we hold that Federal Rule of Civil Procedure 23, not state law, governs when a federal TCPA suit may proceed as a class action. CONCLUSION For the reasons set out above, we VACATE the March 12, 2013 judgment of the District Court, and REMAND for further proceedings consistent with this opinion. . We recently recognized that \"Mims expressly abrogates Foxhall [.Realty Law Offices, Inc. v. Telecomms. Premium Servs., Ltd., 156 F.3d 432 (2d Cir.1998)] and undermines the holdings of Gottlieb [v. Carnival Corp., 436 F.3d 335 (2d Cir.2006).], Bonime [v. Avaya, Inc., 547 F.3d 497 (2d Cir.2008) ], and Holster [v. Gateo, Inc., 618 F.3d 214 (2d Cir.2010) ] insofar as" }, { "docid": "3596891", "title": "", "text": "F.3d 272, 278 (3d Cir.2008), the Landsman Court decided that, in diversity cases, it must first determine whether a “matter” is procedural or substantive; substantive \"matters” require a choice-of-law analysis. Concluding that \"no law could be more substantive than” CPLR § 901(b), since it \"would foreclose the possibility of this Court having jurisdiction,” 636 F.Supp.2d at 364, it performed a choice-of-law analysis to decide whether the substantive law of New Jersey or New York should apply. . New York's Civil Practice Law and Rules (\"CPLR”) § 901(b) states the following: Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action. C.P.L.R. § 901(b) (emphasis added). . See Erie, 304 U.S. at 78, 58 S.Ct. 817 ('Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state.”) (emphasis added); supra n. 10 (noting that Erie’s directive to apply state substantive law and federal procedural law in diversity cases is only applicable where state law causes of action are at issue). . In Shady Grove, the Supreme Court held that § 901(b) \"cannot apply in diversity suits” in federal court; rather, Rule 23 controls. 130 S.Ct. at 1437. The only exception is when Congress has explicitly \"carved out ... federal claims ... from Rule 23's reach,” id. at 1428, which is not the case here. Indeed, we do not interpret § 227(b)(3)'s \"if otherwise permitted by laws or rules of court of a State” language to carve out TCPA claims from Rule 23’s ambit; we agree with Justice Scalia that reading § 227(b)(3) to require deference to state class action law would mean that the TCPA “effect[ed] an implied partial repeal of the Rules Enabling Act,” and \"would require federal courts to enforce any prerequisite to suit state law makes mandatory — a state rule limiting the length of" }, { "docid": "16897637", "title": "", "text": "claims are based, at least in part, on our jurisdictional decision in Fox-hall. As a result, although Mims does not address the precise statute of limitations issue we are faced with here, its holding impacts our case law interpreting section 227(b)(3). Our discussion of section 227(b)(3) in Bonime demonstrates how our interpretation of section 227(b)(3)’s “if otherwise permitted” language relates to our jurisdictional decision in Foxhall. Bonime held that because section 227(b)(3)’s language constitutes an “express limitation on the TCPA,” New York’s class action statute, not Federal Rule of Civil Procedure 23, governed the viability of a class action claim brought in federal court under the court’s diversity jurisdiction. 547 F.3d at 499-502. Bonime had two rationales, only one of which survived at the time we filed our previous opinion. First, Bonime held that because “the TCPA functionally operates as state law, [we had to] apply the Erie doctrine to the TCPA” just as we would to substantive state law and therefore we looked to New York’s class procedures. Id. at 501. This line of reasoning was expressly overruled by the Supreme Court, as we pointed out in Holster, 618 F.3d at 217 (explaining that “to the extent that [Bonime] was based on treating the TCPA ‘as if it were a state law,’ [the Supreme Court’s decision in] Shady Grove [Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ] abrogates [that] holding”). Second, and independently, Bonime explained that as a matter of statutory construction, the language of the TCPA (“if otherwise permitted by the laws or rules of court of a State”) “unambiguous[ly]” created an “express limitation on the TCPA [that] federal courts are required to respect.” 547 F.3d at 502. In other words, Bonime concluded that the statute, by its terms, made a TCPA claim contingent on applicable state law. Id. Judge Calabresi, in a concurring opinion, explained the majority’s second rationale, expressly connecting jurisdiction and the conclusion that the TCPA, as a matter of statutory interpretation, acts as a substantive limitation on TCPA claims in federal court. Judge Calabresi" }, { "docid": "8289444", "title": "", "text": "Allstate, which under New York law had 30 days to pay the claim or deny it. See N. Y. Ins. Law Ann. § 5106(a) (West 2009). Allstate apparently paid, but not on time, and it refused to pay the statutory interest that accrued on the overdue benefits (at two percent per month), see ibid. Shady Grove filed this diversity suit in the Eastern District of New York to recover the unpaid statutory interest. Alleging that Allstate routinely refuses to pay interest on overdue benefits, Shady Grove sought relief on behalf of itself and a class of all others to whom Allstate owes interest. The District Court dismissed the suit for lack of jurisdiction. 466 F. Supp. 2d 467 (2006). It reasoned that N. Y. Civ. Prac. Law Ann. § 901(b), which precludes a suit to recover a “penalty” from proceeding as a class action, applies in diversity suits in federal court, despite Federal Rule of Civil Procedure 23. Concluding that statutory interest is a “penalty” under New York law, it held that § 901(b) prohibited the proposed class action. And, since Shady Grove conceded that its individual claim (worth roughly $500) fell far short of the amount-in-controversy requirement for indi vidual suits under 28 U.S.C. § 1332(a), the suit did not belong in federal court. [559 U.S. 398] The Second Circuit affirmed. 549 F.3d 137 (2008). The court did not dispute that a Federal Rule adopted in compliance with the Rules Enabling Act, 28 U.S.C. § 2072, would control if it conflicted with § 901(b). But there was no conflict because (as we will describe in more detail below) the Second Circuit concluded that Rule 23 and § 901(b) address different issues. Finding no Federal Rule on point, the Court of Appeals held that § 901(b) is “substantive” within the meaning of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and thus must be applied by federal courts sitting in diversity. We granted certiorari. 556 U.S. 1220, 129 S. Ct. 2160, 173 L. Ed. 2d 1155 (2009). II The framework for" }, { "docid": "8289540", "title": "", "text": "Ins. Law Ann. § 5106(a) (West 2009) as a penalty for overdue benefits would, by Shady Grove’s own measure, amount to no more than [559 U.S. 437] $500. By instead filing in federal court based on the parties’ diverse citizenship and requesting class certification, Shady Grove hopes to recover, for the class, statutory damages of more than $5 million. The New York Legislature has barred this remedy, instructing that, unless specifically permitted, “an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.” N. Y. Civ. Prac. Law Ann. (CPLR) § 901(b) (West 2006). The Court nevertheless holds that Federal Rule of Civil Procedure 23, which prescribes procedures for the conduct of class actions in federal courts, preempts the application of § 901(b) in diversity suits. The Court reads Rule 23 relentlessly to override New York’s restriction on the availability of statutory damages. Our decisions, however, caution us to ask, before undermining state legislation: Is this conflict really necessary? Cf. Traynor, Is This Con flict Really Necessary? 37 Texas L. Rev. 657 (1959). Had the Court engaged in that inquiry, it would not have read Rule 23 to collide with New York’s legitimate interest in keeping certain monetary awards reasonably bounded. I would continue to interpret Federal Rules with awareness of, and sensitivity to, important state regulatory policies. Because today’s judgment radically departs from that course, I dissent. I A “Under the Erie doctrine,” it is long settled, “federal courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996); see Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Justice Harlan aptly conveyed the importance of the doctrine; he described Erie as “one of the modern cornerstones of our federalism, expressing policies that profoundly touch the allocation of judicial power between the state and federal systems.” Hanna v. Plumer, [559 U.S. 438] 380 U.S. 460, 474, 85" }, { "docid": "10897181", "title": "", "text": "laws.” Id. at 501-02. Second, we found that the specific language of the TCPA that allows a person to sue under it only “if otherwise permitted by the laws or rules of court of a State,” 47 U.S.C. § 227(b)(3), “constitutes an express limitation on the TCPA which federal courts are required to respect.” Bonime, 547 F.3d at 502. A concurrence further explained this second rationale. Because federal law (the TCPA) uses state law to define the federal cause of action, when the state refuses to recognize that cause of action, “there remains [nothing] to which any grant of federal court jurisdiction could attach.” Id. at 503 (Calabresi, J., concurring). Subsequently, the Supreme Court granted certiorari, vacated our decision, and remanded the case for reconsideration in light of its opinion in Shady Grove Orthopedic Associates, P.A., v. Allstate Insurance Co., — U.S. -, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). Holster v. Gatco, Inc., — U.S. -, 130 S.Ct. 1575, 176 L.Ed.2d 716 (2010). In Shady Grove, the Court considered whether C.P.L.R. 901(b) applied — in general — to claims filed under CAFA in New York federal courts. Finding that C.P.L.R. 901(b) conflicted with Rule 23, which constitutes a valid Rule under the Rules Enabling Act, the Court held that C.P.L.R. 901(b) was preempted. Shady Grove, 130 S.Ct. at 1437, 1438. We now must decide the extent to which Shady Grove undercuts each of our separate and independent holdings in Bonime. Though we find the first ground, predicated on Erie, abrogated by Shady Grove, we see nothing in the Court’s holding that undermines the second ground, which rests not on the relationship between the Federal Rules of Civil Procedure and state rules, but on the unique nature of the federal action the TCPA created. Discussion Regarding Bonime’s first rationale, Holster argues that the Shady Grove Court was clear that “Rule 23 answers the question” of whether a case based on New York state law may proceed as a class action in federal court. Shady Grove, 130 S.Ct. at 1437. Under Shady Grove, he argues, if the requirements of Rule 23" }, { "docid": "20396823", "title": "", "text": "2007 dismissal of the Southern District action, the complaint would be untimely by 30 days, but if tolling were extended through either the motion for reconsideration or appeal of that decision, as Giovanniello urged, the complaint would be timely. . As we recognized in Holster, the Supreme Court’s opinion in Shady Grove abrogated our decision in Bonime only to the extent that it relied on the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), to hold that, in a federal diversity action, N.Y. C.P.L.R. § 901(b) required the dismissal of a putative class action under the TCPA. See Holster v. Gatco, Inc., 618 F.3d at 216-17. Nothing in Shady Grove disturbed Bonime’s alternative ground for decision, which construed the plain language of the TCPA's \"otherwise permitted” provision to require federal courts to respect the prohibition of § 901(b). This distinction was drawn by Judge Calabresi in his concurring opinion in Bonime, which did not join the majority in relying on Erie because a TCPA action is created by federal, not state, law, but which nevertheless supported dismissal based on a construction of the limitation Congress placed on TCPA actions through the plain language of the \"otherwise permitted\" provision. See Bonime v. Avaya, 547 F.3d at 503 (Calabresi, J., concurring) (observing that \"state law that bars suit in state court, like [N.Y.] C.P.L.R. [§] 901(b), thus effectively eliminates the cause of action created under the TCPA”). Indeed, Judge Calabresi clarified the continued vitality of this ground for the Bonime decision in writing for the court in Holster. See Holster v. Gatco, Inc., 618 F.3d at 217-18. .Judge Wallace posits that permitting states to impose statutes of limitations on TCPA actions allows states to \"modify a right established by Congress” in \"direct tension with the Supremacy Clause.” Wallace, J., Op., post at [604, 605]. This concern is misplaced because we construe the \"otherwise permitted” provision as a congressional delegation of authority to the states to define the TCPA action permitted in their respective jurisdictions. In any event, it would be odd to conclude," }, { "docid": "8289570", "title": "", "text": "the TCPA itself calls for the application of state law. See Rudgayzer, 22 App. Div. 3d, at 149-150, 799 N.Y.S.2d, at 796-797 (federal action authorized in state court “if otherwise permitted by the laws or rules of the court of [the] State” (quoting 47 U.S.C. § 227(b)(3))). See also Gottlieb v. Carnival Corp., 436 F.3d 335, 342 (CA2 2006) (Sotomayor, J.) (“Congress sought, via the TCPA, to enact the functional equivalent of a state law.”). The TCPA, the Supreme Court of Connecticut has recognized, thus “carves out an exception to th[e] general rule” that “when Erie ... is reversed . . . , a state court hearing a federal case is normally required to apply federal substantive law”: “Under § 227(b)(3) . . . it is state substantive law that determines, as a preliminary matter, whether a federal action under the act may be brought in state court.” Weber v. U. S. Sterling Securities, Inc., 282 Conn. 722, 736, 924 A.2d 816, 826 (2007) (in TCPA action governed by New York substantive law, § 901(b) applied even though the claim was pursued in Connecticut state court). Moreover, statutes qualify as “substantive” for Erie purposes even when they have “procedural” thrusts as well. See, e.g., Cohen, 337 U.S., at 555, 69 S. Ct. 1221, 93 L. Ed. 1528; cf. Woods v. Interstate Realty Co., 337 U.S. 535, 536-538, and n. 1, 69 S. Ct. 1235, 93 L. Ed. 1524 (1949) (holding diversity case must be dismissed based on state statute that, by its terms, governed only proceedings in state court). Statutes of limitations are, again, exemplary. They supply “substantive” law in diversity suits, see York, 326 U.S., at 109-112, 65 S. Ct. 1464, 89 L. Ed. 2079, even though, as Shady Grove acknowledges, state courts often apply the forum’s limitations period as a “procedural” bar to claims arising under the law of another State, see Reply Brief 24, n. 16; Tr. of Oral Arg. 16-17. See also [559 U.S. 456] Restatement §§ 142-143 (when adjudicating a foreign cause of action, State may use either its own or the foreign jurisdiction’s statute" }, { "docid": "8289521", "title": "", "text": "designed to control very different sorts of decisions.” Id., at 471, 85 S. Ct. 1136, 14 L. Ed. 2d 8. Because Rule 23 governs class certification, the only decision is whether certifying a class in this diversity case would “abridge, enlarge or modify” New York’s substantive rights or remedies. § 2072(b). Although one can argue that class certification would enlarge New York’s “limited” damages remedy, see post, at 443, and n. 2, 444, 447, 459, 176 L. Ed. 2d, at 345, 346, 348, 355, such arguments rest on extensive speculation about what the New York Legislature had in mind when it created § 901(b). But given that there are two plausible competing narratives, it seems obvious to me that we should respect the plain textual reading of § 901(b), a rule in New York’s procedural code about when to certify class actions brought under any source of law, and respect Congress’ decision that Rule 23 governs class certification in federal courts. In order to displace a federal rule, there must be more than just a possibility that the state rule is different than it appears. Accordingly, I concur in part and concur in the judgment. . See also Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996); E. Chemerinsky, Federal Jurisdiction § 5.3, p. 327 (5th ed. 2007) (hereinafter Chemerinsky); 17A J. Moore et al., Moore’s Federal Practice § 124.01[1] (3d ed. 2009) (hereinafter Moore). . The choice in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), requires that the court consider “the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.’’ Hanna v. Plumer, 380 U.S. 460, 468, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965); see also Gasperini, 518 U.S., at 427-428, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (describing Erie inquiry). . See Chemerinsky § 5.3.5, at 321 (observing that courts “have struggled to develop an approach that permits uniform procedural rules to be applied" }, { "docid": "10897180", "title": "", "text": "be maintained in New York. Relying on the TCPA’s “otherwise permitted” language, Gateo argued that, as a result, no suit could lie under the TCPA and therefore that CAFA could not apply. That meant, Gateo concluded, that the district court lacked jurisdiction. Agreeing, that court (Bianco, J.) dismissed the case. We affirmed in a summary order predicated on a case decided the same day, raising the same issue, Bonime v. Avaya, Inc., 547 F.3d 497 (2d Cir.2008). Holster v. Gatco, Inc., No. 07-2191-cv, 2008 U.S.App. LEXIS 23203 (2d Cir. Oct. 31, 2008). In Bonime we held that C.P.L.R. 901(b) applied to TCPA actions in New York for two, independent, reasons. First, we explained that “because Congress directed that the TCPA be applied as if it were a state law,” the Erie doctrine required federal courts to apply C.P.L.R. 901(b) to TCPA claims in New York. Bonime, 547 F.3d at 501. To hold otherwise, we said, “would create a predictable and foreseeable outcome-determinative difference that would strongly encourage forum shopping and create inequitable administration of the laws.” Id. at 501-02. Second, we found that the specific language of the TCPA that allows a person to sue under it only “if otherwise permitted by the laws or rules of court of a State,” 47 U.S.C. § 227(b)(3), “constitutes an express limitation on the TCPA which federal courts are required to respect.” Bonime, 547 F.3d at 502. A concurrence further explained this second rationale. Because federal law (the TCPA) uses state law to define the federal cause of action, when the state refuses to recognize that cause of action, “there remains [nothing] to which any grant of federal court jurisdiction could attach.” Id. at 503 (Calabresi, J., concurring). Subsequently, the Supreme Court granted certiorari, vacated our decision, and remanded the case for reconsideration in light of its opinion in Shady Grove Orthopedic Associates, P.A., v. Allstate Insurance Co., — U.S. -, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). Holster v. Gatco, Inc., — U.S. -, 130 S.Ct. 1575, 176 L.Ed.2d 716 (2010). In Shady Grove, the Court considered whether C.P.L.R. 901(b) applied —" }, { "docid": "10897182", "title": "", "text": "in general — to claims filed under CAFA in New York federal courts. Finding that C.P.L.R. 901(b) conflicted with Rule 23, which constitutes a valid Rule under the Rules Enabling Act, the Court held that C.P.L.R. 901(b) was preempted. Shady Grove, 130 S.Ct. at 1437, 1438. We now must decide the extent to which Shady Grove undercuts each of our separate and independent holdings in Bonime. Though we find the first ground, predicated on Erie, abrogated by Shady Grove, we see nothing in the Court’s holding that undermines the second ground, which rests not on the relationship between the Federal Rules of Civil Procedure and state rules, but on the unique nature of the federal action the TCPA created. Discussion Regarding Bonime’s first rationale, Holster argues that the Shady Grove Court was clear that “Rule 23 answers the question” of whether a case based on New York state law may proceed as a class action in federal court. Shady Grove, 130 S.Ct. at 1437. Under Shady Grove, he argues, if the requirements of Rule 23 are met and if federal jurisdiction otherwise exists, C.P.L.R. 901(b)’s bar of New York class-action suits seeking statutory damages is irrelevant. We agree. And to the extent that our prior holding was based on treating the TCPA “as if it were a state law,” Bonime, 547 F.3d at 501, Shady Grove’s holding that Rule 23 generally preempts C.P.L.R. 901(b) abrogates our holding. But this answers only a part of the question before us. Though the Shady Grove Court said a great deal about the interaction of Rule 23 and C.P.L.R. 901(b), it said nothing at all about the TCPA, and what that statute requires for a federal cause of action to lie. This is not a question that implicates the relationship between the Federal Rules and state rules; it is a standard question of statutory interpretation. What did Congress mean when it said that TCPA suits may proceed “if otherwise permitted by the laws or rules of court of a State,” 47 U.S.C. § 227? We now read it, as the concurrence did before, as" }, { "docid": "8289443", "title": "", "text": "OPINION OF THE COURT [559 U.S. 395] Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II-A, an opinion with respect to Parts II-B and II-D, in which The Chief Justice, Justice Thomas, and Justice Sotomayor join, and an opinion with respect to Part II-C, in which The Chief Justice and Justice Thomas join. [559 U.S. 396] New York law prohibits class actions in suits seeking penalties or statutory minimum damages. We consider whether this precludes a federal district court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. [559 U.S. 397] I The petitioner’s complaint alleged the following: Shady Grove Orthopedic Associates, P. A., provided medical care to Sonia E. Galvez for injuries she suffered in an automobile accident. As partial payment for that care, Galvez assigned to Shady Grove her rights to insurance benefits under a policy issued in New York by Allstate Insurance Co. Shady Grove tendered a claim for the assigned benefits to Allstate, which under New York law had 30 days to pay the claim or deny it. See N. Y. Ins. Law Ann. § 5106(a) (West 2009). Allstate apparently paid, but not on time, and it refused to pay the statutory interest that accrued on the overdue benefits (at two percent per month), see ibid. Shady Grove filed this diversity suit in the Eastern District of New York to recover the unpaid statutory interest. Alleging that Allstate routinely refuses to pay interest on overdue benefits, Shady Grove sought relief on behalf of itself and a class of all others to whom Allstate owes interest. The District Court dismissed the suit for lack of jurisdiction. 466 F. Supp. 2d 467 (2006). It reasoned that N. Y. Civ. Prac. Law Ann. § 901(b), which precludes a suit to recover a “penalty” from proceeding as a class action, applies in diversity suits in federal court, despite Federal Rule of Civil Procedure 23. Concluding that statutory interest is a “penalty” under New York law, it held that § 901(b) prohibited" }, { "docid": "13195075", "title": "", "text": "to insurance benefits arising out of a car accident in which she was injured to the clinic that treated her injuries. Id. at 397, 130 S.Ct. 1431. Allstate paid the clinic the benefits due but allegedly paid them late and then refused to pay the statutory interest on the overdue payments. The clinic then brought a lawsuit in federal court to recover that interest, and sought to represent a class of others to whom Allstate had failed to pay statutory interest. The District Court dismissed the case because New York law “precludes a suit to recover a penalty from proceeding as a class action.” Id. The Second Circuit affirmed, finding that the New Yojk statute at issue, N.Y. Civ. Prac. Law Ann. § 901, did not conflict with Rule 23, and that § 901 was “substantive” within the meaning of Erie and must therefore be applied by federal courts sitting in diversity. There is no majority opinion in Shady Grove. Rather, Justice Scalia wrote the opinion of the Court for a plurality of himself and three other Justices. He set forth the “familiar framework” for resolving conflicts between federal rules and state laws: the federal rule governs unless application of the federal rule “exceeds statutory authority or Congress’s rulemaking power” under the Rules Enabling Act, 559 U.S. at 398, 130 S.Ct. 1431, which limits rulemaking authority to rules that do “not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). Justice Scalia found that the substantive nature of the state law at issue was immaterial to the conflicts analysis. 559 U.S. at 409, 130 S.Ct. 1431. Rather, the federal courts should look to the federal rule to determine whether it was substantive or procedural. Id. at 410, 130 S.Ct. 1431. If the federal rule is procedural, it governs regardless of its effect on any state right. Id. And according to Justice Scalia, Rule 23 is procedural and therefore trumps any state laws prohibiting class-action treatment of certain claims. Id. at 408, 130 S.Ct. 1431. Justice Stevens, writing alone, concurred in this judgment, but for a different reason than" }, { "docid": "13195074", "title": "", "text": "Alabama, Georgia, Kentucky, Louisiana, Mississippi, Montana, South Carolina, and Tennessee — prohibit class-action treatment of claims under those statutes. An additional two states — Ohio and Utah — allow class pursuit of consumer-protection claims only if the challenged act has been declared deceptive by a final court judgment or by the state’s attorney general. The parties dispute whether a state statute prohibiting class actions applies to bar such class actions in federal court. The dispute centers on a recent Supreme Court decision. Shady Grove Orthopedic Assoc., P.A. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010). According to Target, the controlling opinion in Shady Grove found that federal class treatment of a state law that prohibits class actions is prohibited if the state law is substantive, rather than procedural. Target urges the Court to find that the statutes prohibiting class treatment under these states’ consumer-protection laws here are substantive and thus that class actions raising claims under those laws must be dismissed. In Shady Grove, a patient assigned her rights to insurance benefits arising out of a car accident in which she was injured to the clinic that treated her injuries. Id. at 397, 130 S.Ct. 1431. Allstate paid the clinic the benefits due but allegedly paid them late and then refused to pay the statutory interest on the overdue payments. The clinic then brought a lawsuit in federal court to recover that interest, and sought to represent a class of others to whom Allstate had failed to pay statutory interest. The District Court dismissed the case because New York law “precludes a suit to recover a penalty from proceeding as a class action.” Id. The Second Circuit affirmed, finding that the New Yojk statute at issue, N.Y. Civ. Prac. Law Ann. § 901, did not conflict with Rule 23, and that § 901 was “substantive” within the meaning of Erie and must therefore be applied by federal courts sitting in diversity. There is no majority opinion in Shady Grove. Rather, Justice Scalia wrote the opinion of the Court for a plurality of himself and" }, { "docid": "8289445", "title": "", "text": "the proposed class action. And, since Shady Grove conceded that its individual claim (worth roughly $500) fell far short of the amount-in-controversy requirement for indi vidual suits under 28 U.S.C. § 1332(a), the suit did not belong in federal court. [559 U.S. 398] The Second Circuit affirmed. 549 F.3d 137 (2008). The court did not dispute that a Federal Rule adopted in compliance with the Rules Enabling Act, 28 U.S.C. § 2072, would control if it conflicted with § 901(b). But there was no conflict because (as we will describe in more detail below) the Second Circuit concluded that Rule 23 and § 901(b) address different issues. Finding no Federal Rule on point, the Court of Appeals held that § 901(b) is “substantive” within the meaning of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and thus must be applied by federal courts sitting in diversity. We granted certiorari. 556 U.S. 1220, 129 S. Ct. 2160, 173 L. Ed. 2d 1155 (2009). II The framework for our decision is familiar. We must first determine whether Rule 23 answers the question in dispute. Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S. Ct. 967, 94 L. Ed. 2d 1 (1987). If it does, it governs—New York’s law notwithstanding—unless it exceeds statutory authorization or Congress’s rulemaking power. Id., at 5, 107 S. Ct. 967, 94 L. Ed. 2d 1; see Hanna v. Plumer, 380 U.S. 460, 463-464, 85 S. Ct. 1136, 14 L. Ed. 2d 8 (1965). We do not wade into Erie’s murky waters unless the Federal Rule is inapplicable or invalid. See 380 U.S., at 469-471, 85 S. Ct. 1136, 14 L. Ed. 2d 8. A The question in dispute is whether Shady Grove’s suit may proceed as a class action. Rule 23 provides an answer. It states that “[a] class action may be maintained” if two conditions are met: The suit must satisfy the criteria set forth in subdivision (a) (i.e., numerosity, commonality, typicality, and adequacy of representation), and it also must fit into one of the" }, { "docid": "11382009", "title": "", "text": "class certification to TCPA claimants); and Gene & Gene, LLC v. Biopay, LLC, 240 F.R.D. 239 (D.La.2006) (same). Neither the Supreme Court nor the Second Circuit has addressed whether a class action may be maintained for TCPA claims. This case, however, first raises a more discrete jurisdictional question also not yet addressed by the Second Circuit — that is, whether, pursuant to the Erie doctrine, N.Y. C.P.L.R. § 901(b) prevents class action plaintiffs in New York seeking damages under the TCPA from invoking federal diversity jurisdiction under the Class Action Fairness Act. N.Y. C.P.L.R. § 901(b) provides: Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action. Thus, instead of examining the broader question of whether a TCPA class action may satisfy the requirements of Rule 23, the Court will (1) determine whether substantive state law applies to TCPA cases proceeding in federal courts sitting in diversity jurisdiction, and, (2) if substantive state law does apply to this action, whether § 901(b) of New York law, which precludes TCPA class actions in state court, is substantive or procedural. Cf. McGaughey v. Treistman, No. 05-CV-7069 (HB), 2007 WL 24935, at *3 n. 5, 2007 U.S. Dist. LEXIS 126, at *11 n. 5 (S.D.N.Y. Jan. 4, 2007) (denying class certification and declining to address the jurisdictional issue). 1. The Eñe Doctrine In Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the Supreme Court instructed federal courts sitting in diversity jurisdiction as to the application of federal versus state laws. It is now well established that, “[ujnder the Eñe doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.” Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); see also Allianz Ins. Co. v. Lerner, 416 F.3d 109, 118 (2d Cir.2005) (citing Gasperini and recognizing that “New" }, { "docid": "1395598", "title": "", "text": "that “since enacting the Donnelly Act, the New York State Legislature has twice considered the indirect purchasers!”] right to bring suit,” but has adopted “no express language[ ] ... which authorizes the maintenance of a class action.” Lennon, 734 N.Y.S.2d at 381. In light of the text and policies of the provisions, the Court declines to interpret Rule 23 so broadly as to control the remedial issues governed by C.P.L.R. 901(b) and the Donnelly Act. Accordingly, the Court discerns no direct conflict between the state law and the Federal Rule. See United States v. Dentsply Int’l, Inc., Nos. Civ. A. 99-005-SLR, 99-255-SLR, 99-854-SLR, 2001 WL 624807, at *16 (D.Del. Mar. 30, 2001) (distinguishing the scope of Rule 23 from that of C.P.L.R. 901(b)); but cf. Bridgestone/Firestone, 205 F.R.D. at 516, rev’d in part on other grounds sub nom. In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (refusing to apply the reasoning of Dentsply International, and concluding that a Michigan provision limiting class action plaintiffs to those residing or injured in the state conflicts with Rule 23). Because it found no “direct collision” between the state and federal provisions, the Court’s decision whether to apply C.P.L.R. 901(b) was guided not by Hanna, but by the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” 19 Wright, Miller & Cooper, supra, § 4504 (quoting Hanna, 380 U.S. at 468, 85 S.Ct. 1136); see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Significant to the Court’s Erie analysis was the fact that New York courts consistently apply C.P.L.R. 901(b) to bar class actions brought under the Donnelly Act. See Cox, 737 N.Y.S.2d at 2; Asher, 737 N.Y.S.2d at 4; Lennon, 734 N.Y.S.2d at 380 (“Even where treble damages are discretionary and need not be sought by the injured party, it is this Court’s understanding that no New York court has sustained such a claim either under the Donnelly Act or any other statutory provision.”). For this reason, declining to apply C.P.L.R. 901(b) would clearly encourage forum-shopping, with plaintiffs and" }, { "docid": "3596892", "title": "", "text": "law of the state.”) (emphasis added); supra n. 10 (noting that Erie’s directive to apply state substantive law and federal procedural law in diversity cases is only applicable where state law causes of action are at issue). . In Shady Grove, the Supreme Court held that § 901(b) \"cannot apply in diversity suits” in federal court; rather, Rule 23 controls. 130 S.Ct. at 1437. The only exception is when Congress has explicitly \"carved out ... federal claims ... from Rule 23's reach,” id. at 1428, which is not the case here. Indeed, we do not interpret § 227(b)(3)'s \"if otherwise permitted by laws or rules of court of a State” language to carve out TCPA claims from Rule 23’s ambit; we agree with Justice Scalia that reading § 227(b)(3) to require deference to state class action law would mean that the TCPA “effect[ed] an implied partial repeal of the Rules Enabling Act,” and \"would require federal courts to enforce any prerequisite to suit state law makes mandatory — a state rule limiting the length of the complaint, for example.” Holster v. Gatco, Inc., - U.S. -, 130 S.Ct. 1575, 1575-76, 176 L.Ed.2d 716 (2010) (Mem. granting petition for writ of certiorari, vacating judgment and remanding to the Second Circuit) (Scalia, J., concurring). \"A more probable” reading of this language “is that when a State closes its doors to claims under the Act § 227(b)(3) requires federal courts in the State to do so as well.” Id. at 1576. This language deals with the threshold requirement of where and when TCPA suits can be brought. It basically authorizes a state to keep these claims out of state court, see Brill, 427 F.3d at 451; Int’l Sci., 106 F.3d at 1156, but it does not explicitly require the application of state law or direct federal courts to defer to state law in deciding whether a class action can be maintained. Such a clear statement from Congress would be needed for TCPA claims to fall under the exception articulated in Shady Grove. Further, the Shady Grove plurality objected to treating § 901(b) as" }, { "docid": "10897183", "title": "", "text": "are met and if federal jurisdiction otherwise exists, C.P.L.R. 901(b)’s bar of New York class-action suits seeking statutory damages is irrelevant. We agree. And to the extent that our prior holding was based on treating the TCPA “as if it were a state law,” Bonime, 547 F.3d at 501, Shady Grove’s holding that Rule 23 generally preempts C.P.L.R. 901(b) abrogates our holding. But this answers only a part of the question before us. Though the Shady Grove Court said a great deal about the interaction of Rule 23 and C.P.L.R. 901(b), it said nothing at all about the TCPA, and what that statute requires for a federal cause of action to lie. This is not a question that implicates the relationship between the Federal Rules and state rules; it is a standard question of statutory interpretation. What did Congress mean when it said that TCPA suits may proceed “if otherwise permitted by the laws or rules of court of a State,” 47 U.S.C. § 227? We now read it, as the concurrence did before, as a delegation by Congress to the states of considerable power to determine which causes of action lie under the TCPA. Holster, echoing Justice Scalia’s concurrence in the remand order, argues that this reading is untenable because it would create the absurd result of a litigant losing his putative federal right to recover under the TCPA for failing to follow trivial state court rules about “the color and size of the paper” used for the complaint. Holster, 130 S.Ct. at 1576 (Scalia, /., concurring). If we had to read the TCPA’s “otherwise permitted” language as barring the applicability of the TCPA when any state rule, however insignificant, was not conformed with, this argument would have force. But, there exists no rule prohibiting courts from reading a law with any eye to the legislature’s goals in enacting the statute; quite the contrary. It is, for example, one of the oldest principles of tort law that, in a suit on a statute, a plaintiff may only recover for the type of injury— the “mischief’ — that the statute" } ]

[ { "docid": "10561903", "title": "", "text": "fax submission “contained the relevant information” but disputed whether it conformed to the SFIP’s requirement of a statement of the amount claimed under the policy that is “signed and sworn by the insured.” Id. at 734 (emphasis added). The Eighth Circuit held that the Mancinis did not comply with the SFIP’s proof-of-loss provision, observing that then’ “signature does not appear on a statement by the Mancinis as to the amount they claimed under the policy.” Id. Thus, they failed to sign and swear to the amount they sought to recover. In Evanoff v. Standard Fire Insurance Co., 534 F.3d 516, 520-21 (6th Cir.2008), the Sixth Circuit adopted the Eighth Circuit’s reasoning in Mancini. It held that a policyholder failed to comply with the SFIP where he submitted all of the supporting documentation required in the proof-of-loss provision, along with a letter that contained his signature. Id. The Eva-noff court explained that the policyholder was “required to do more than merely submit a set of figures together with a signed statement not rejecting or nullifying those figures. [He] had to submit a signed statement as to the amount claimed under the policy. [He] simply did not do so.” Id. at 520 (quoting Mancini, 248 F.3d at 734-35) (internal quotation mark omitted). Here, DeCosta’s signature on Allstate’s two proof-of-loss forms for building damages claims only the amounts listed in those forms. His policy made clear that these forms are provided only as a courtesy, warning policyholders that they are responsible for submitting a timely proof of loss if their insurer’s adjuster does not supply them with a form. 44 C.F.R. pt. 61, app. A(l), art. VII(J)(7). While the SFIP does not require that a proof of loss follow any particular format, it “define[s] a proof of loss as a statement of the insured, not of some third party, and it does require that the insured sign and swear to that statement.” Mancini, 248 F.3d at 734. That was not done here as to the sums claimed in the litigation. See id. at 735 (“[I]t is the insured, not the adjuster, who must" } ]

[ { "docid": "13209508", "title": "", "text": "be strictly construed and serves as a condition precedent to recovery under the SFIP. Mancini v. Redland Ins. Co., 248 F.3d 729, 733 (8th Cir.2001). When strictly construing SFIP requirements in Mancini, we determined that a proof of loss was invalid when accompanied by a transmittal letter only bearing the printed names of the insured, for it had not been “signed and sworn” as required by SFIP article VII.J.4. Id. at 734-35. The Gunters argue that our analysis in Mancini does not apply here because unlike the appellants in that case, they timely filed a valid proof of loss for the amount of their undisputed damage, thereby fulfilling the prerequisites for suing on the disputed amount of loss on the same residence. A similar argument was rejected by the First Circuit in DeCosta v. Allstate Insurance. Company, 730 F.3d 76 (1st Cir.2018). The insured in DeCosta included with two timely filed proof of loss forms a sixteen page estimate from one of his adjusters claiming additional loss on the property. Id. at 78-79. After the WYO insurer paid the amount claimed in the proof of loss forms, DeCosta sued for the additional amount listed in the adjuster’s estimate, arguing that the estimate satisfied a strict construction of the proof of loss requirement because it was submitted contemporaneously with two proof of loss forms. Id. at 85. The First Circuit rejected this argument, concluding that a signed and sworn proof of loss for building damages “claims only the amounts listed in those forms,” and the insured must timely file an additional proof of loss to claim any additional amount of money. Id. The First Circuit reasoned that a strict construction of the SFIP is needed to protect sovereign immunity when federal funds are in question and to ensure uniformity in “the diverse jurisdictions inundated with flood insurance disputes in the aftermath’ of natural disasters.” Id. at 84. We agree. The SFIP is clear that statements by an adjuster are provided only as a courtesy, and the proof of loss is the signed and sworn final statement of the insured as to" }, { "docid": "11188771", "title": "", "text": "Sanz began to notice cracks in the walls of his house after approximately two months. Sanz’ repeated efforts to repair the cracks were unsuccessful. On February 29, 2000, he notified Security, his insurance carrier, of the damage. In April of 2000, adjustors and a structural engineer visited Sanz’ home in an attempt to determine the cause and scope of the damage. Sanz contends that the adjustors informed him that he needed to submit estimates of the damage to Security. In June 2000, Sanz followed the advise and sent estimates of repair to Security. Sanz further contends that Security continued to reassure him that all paperwork had been filed and that Security would “take care of him.” Sometime thereafter, Security denied Sanz’ claim. On September 20, 2001, Sanz filed this lawsuit against Security claiming that Security breached the insurance contract when it refused to pay. Although Sanz was represented by counsel when the complaint was filed, he proceeded pro se during the bench trial. After the bench trial, the district court granted Security’s motion for judgment as a matter of law. The district court reasoned that because Sanz did not file a proof of loss as required by his insurance policy, his claim must necessarily fail. The district court relied on decisions from the Eighth and Fifth Circuits and concluded that individuals insured via federal flood insurance policies must adhere strictly to all conditions precedent contained in their policies. II. DISCUSSION A. Strict Compliance with Policy Conditions The issue in this case is whether the district court correctly determined that all conditions precedent must be fulfilled before an individual may receive benefits under a federal flood insurance contract. Five of our sister circuits that have addressed this issue have all concluded that there must be strict compliance with the terms and conditions of federal flood insur- anee policies and that the failure to file a proof of loss prohibits a plaintiff from recovery. Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Redland Ins. Co., 248 F.3d 729 (8th Cir.2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386" }, { "docid": "13209506", "title": "", "text": "Congress has granted that right by statute. See Grissom v. Liberty Mut. Fire Ins. Co., 678 F.3d 397, 401 (5th Cir.2012) (citing Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981)). The parties agree that the Gunters’ breach of contract claim puts federal funds at stake, and thus a jury trial was not available to the Gunters. III. We review de novo a district court’s grant of summary judgment. Argenyi v. Creighton Univ., 70S F.3d 441, 446 (8th Cir.2013). Construing all facts and drawing all reasonable inferences in favor of the nonmoving party, summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id. The district court granted summary judgment to Farmers on the ground that the Gunters had failed to file a supplemental proof of loss and thus did not satisfy the prerequisites for suing on their additional claims. Under the terms of the SFIP the Gunters “may not sue ... to recover money under th[eir] policy unless [they] have complied with all the requirements of the policy.” 44 C.F.R. pt. 61 app. A(1), art. VII.R. One of these stated requirements is filing a proof of loss within 60 days of the flood. Id., art. VII.J.4. The SFIP defines the proof of loss as “your statement of the amount you are claiming under the policy signed and sworn to by you.” Id. While an insurance adjuster may provide the proof of loss form or assist the insured in preparing it, the SFIP is clear that insureds must use their own judgment concerning the amount of loss. Id., art. VII.J.5, J.7. If the proof of loss is rejected, the insured has the option under the SFIP to accept the denial, to file an amended proof of loss within the original sixty days, or to exercise the rights under the policy. Id., art. VII.M.2. As the proof of loss requirement is a regulatory limit on the disbursement of funds through a federal insurance program, it is to" }, { "docid": "8850457", "title": "", "text": "proof of loss provisions of the policy.” It awarded the Maneinis the $56,257.33 included by the adjuster on the proof-of-loss form, but denied all other items of damages as not having been submitted to the company in accordance with the policy. This appeal and cross-appeal followed. II. Because Redland functions here not as 'a purely private insurance company, but as a fiscal agent of the United States, see 42 U.S.C. § 4071(a)(1), this case is governed to some extent by rules quite different from those that would apply in a normal insurance dispute. The policy the Maneinis bought is more than a contract: it is also a regulation of the Federal Emergency Management Agency, stating the conditions under which federal flood-insurance funds may be disbursed to eligible policy holders. See 44 C.F.R. § 61.13 (1997). The Supreme Court has held that courts must strictly construe the statutory or regulatory limits upon disbursements of funds through federal insurance programs. Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385-86, 68 S.Ct. 1, 92 L.Ed. 10 (1947). Like our sister circuits, we are unable to avoid the conclusion that the proof-of-loss provision in the SFIP states such a limit and must therefore be strictly construed. Accord, Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 387 (9th Cir.), cert. denied, — U.S. -, 121 S.Ct. 305, 148 L.Ed.2d 245 (2000); Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir.1998). Additionally, the SFIP states that an insured must comply with all policy requirements or lose the right to sue under the policy. Because a plaintiffs judgment in such a suit would be paid out of the federal treasury, those requirements function as “conditions precedent to a waiver by the federal government of its sovereign immunity.” Wagner v. Director, FEMA, 847 F.2d 515, 518 (9th Cir.1988). That circumstance is an independent reason why we must strictly construe the proof-of-loss requirement. Id. Bearing that duty in mind, we next determine what the Mancinis were required to do in order to submit a valid proof of loss. The SFIP defines a proof of loss as" }, { "docid": "17690333", "title": "", "text": "C.F.R. §§ 61.4(b), 61.13(d), 62.23(c), 62.23(d). Neuser v. Hooker, 246 F.3d 508, 509-10 (6th Cir.2001) (internal footnote omitted). See also Bruinsma v. State Farm Fire and Cas. Co., 410 F.Supp.2d 628, 631-32 (W.D.Mich.2006) (providing cogent description of NFIP program). Consequently, Standard Fire functions here as a fiscal agent of the United States, rather than as a purely private insurance company, 42 U.S.C. § 4071(a)(1), and Evanoffs SFIP is funded by the federal treasury. See Mancini v. Redland Ins. Co., 248 F.3d 729, 733 (8th Cir.2001); Gowland, 143 F.3d at 953. Standard Fire’s motion for summary judgment was premised on its claim that Evanoff did not timely provide a proof of loss, as required by plaintiffs SFIP and 44 C.F.R. § 61, App. A(2)(J)(4). Evanoff argues on appeal that he provided “each and every item required” by the SFIP, including a letter that contained his signature. Evanoff essentially concedes that his letter was not notarized or otherwise sworn, but contends that because any false statement made to Standard Fire (acting as an agent of the government) would be subject to criminal penalties under 18 U.S.C. § 1001, his signed and faxed letter satisfied the policy’s requirement. On this issue, we find the Eighth Circuit’s opinion in Mancini to be on point and persuasive. In Mancini, the plaintiffs purchased a SFIP from the defendant insurer for their farm house. 248 F.3d at 731. After a snow melt and the use of an overflow pump caused the plaintiffs’ home to flood, the defendant sent an adjuster to inspect the property. Id. After the defendant’s adjuster provided plaintiffs with an estimate and a proof of loss form, and instructed the plaintiffs that the form must be signed and notarized, the plaintiffs forwarded the form' — unsigned and without notarization — to the defendant insurer. Id. at 732. The insurer refused to pay the plaintiffs’ claim, resulting in a lawsuit filed in federal district court. After a bench trial, the district court found for the plaintiffs, reasoning that by submitting the proof of loss forms to the defendant, along with an accompanying letter bearing their" }, { "docid": "14496326", "title": "", "text": "FEMA, 785 F.2d 13, 14 (1st Cir.1986), “more than 90% are written by WYO companies.” C.E.R.1988, Inc. v. Aetna Cas. & Sur. Co., 386 F.3d 263, 267 (3d Cir.2004). WYO companies such as Metropolitan may act as “fiscal agents of the United States,” 42 U.S.C. § 4071(a)(1), but they are not general agents and therefore must strictly enforce the provisions set out in the regulations, varying the terms of a policy only with FEMA’s express written consent. See 44 C.F.R. §§ 61.4(b), 61.13(d)(e), 62.23(c)-(d). Thus, while the private insurance companies administer the federal program, “[i]t is the Government, not the companies, that pays the claims.” Palmieri, 445 F.3d at 184; see also Downey v. State Farm Fire & Cas. Co., 266 F.3d 675, 679 (7th Cir.2001) (noting that under the NFIP, “although private insurers issue the policies, FEMA underwrites the risk” and that the “insurance companies handle administrative business for FEMA by selling policies and processing claims but do little else”). Jacobson’s argument rests on the idea that the SFIP at issue here must be interpreted like any private insurance contract, thus allowing him the benefit of a more liberal interpretation of the proof-of-loss requirement with which he failed to comply. While we have not specifically addressed the interpretation of SFIP proof-of-loss requirements, many of our sister circuits have done so and have uniformly held that those requirements must be strictly construed and enforced. See, e.g., Evanoff v. Standard Fire Ins. Co., 534 F.3d 516 (6th Cir.2008); Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337 (11th Cir.2007); Phelps, 785 F.2d 13; Suopys v. Omaha Prop. & Cas., 404 F.3d 805 (3d Cir.2005); Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Red-land Ins. Co., 248 F.3d 729 (8th Cir.2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir.2000); Gowland v. Aetna, 143 F.3d 951 (5th Cir.1998). We adopt the same standard here. We do so in part because “[t]here is a compelling interest in assuring uniformity of decision in cases involving the NFIP.” Flick, 205 F.3d at 390. But even if we" }, { "docid": "10561899", "title": "", "text": "to make payments required to carry out the NFIP). Because the federal government is liable for claims brought under SFIPs issued by private insurers, the Constitution mandates strict compliance with the SFIP. The Supreme Court has “recognized that the Appropriations Clause prohibits the judiciary from awarding claims against the United States that are not authorized by statute.” Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386, 391 (9th Cir.2000) (citing Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424, 434, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990)); see U.S. Const, art. I, § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”). Here, “Congress, through a valid act of delegation to FEMA, has authorized payment of flood insurance funds to only those claimants that submit a timely sworn proof of loss.” Flick, 205 F.3d at 394. As a result, it would “usurp Congress’s exclusive power to appropriate money were [federal courts] to award an unauthorized money claim based on a theory of substantial compliance” with the SFIP’s proof-of-loss requirement. Id. at 391. Enforcing strict compliance with the SFIP also arises from the doctrine of sovereign immunity. Given that it is the government’s liability at stake in any suit against a WYO insurer, compliance with the proof-of-loss provision serves as a “condition[ ] precedent to a waiver by the federal government of its sovereign immunity.” Wagner v. Dir., Fed. Emergency Mgmt. Agency, 847 F.2d 515, 518 (9th Cir.1988). As we have explained, “[i]t has long been established that the [government] is not subject to suit without a waiver -of sovereign immunity, and that any such waiver is to be strictly construed.” Progressive Consumers Fed. Credit Union v. United States, 79 F.3d 1228, 1230- (1st Cir.1996). Where waiver depends on compliance with the terms of a federal insurance policy, it follows that the terms of that policy must also be strictly construed and enforced. See Mancini v. Redland Ins. Co., 248 F.3d 729, 734-35 (8th Cir.2001). In Phelps v. Federal Emergency Management Agency, 785 F.2d 13 (1st Cir.1986), we upheld" }, { "docid": "13209511", "title": "", "text": "the Gunters have not established misconduct here. Id. (internal citation omitted). The Gunters did not tell Tipton that they disagreed with the February 2010 proof of loss until after the 60 days to file a proof of loss had passed. The Gunters’ failure to file a timely proof of loss for the disputed amount thus cannot have been the result of Tipton’s representations, and the Gunters’ estoppel argument fails. Second, the Gunters argue that they are not bound by the amount listed in their proof of loss because they signed it under duress. ’To prove duress a party must show that (1) he involuntarily accepted the terms of the opposing party, (2) the circumstances permitted no other alternative, and (3) the circumstances were the result of coercive acts by the opposing party. W.R. Grimshaw Co. v. Nevil C. Withrow Co., 248 F.2d 896, 904 (8th Cir.1957). While it is not clear that duress is available as a defense to a proof of loss, there is no need to reach that issue here because the Gunters cannot show that they had no alternative to accepting the damage estimate in the U.S. Forensic report. See Howell v. State Farm Ins. Co., 540 F.Supp.2d 621, 632 (D.Md.2008). The SFIP explains that the proof of loss is the Gunters’ own statement; even if assisted by an adjuster, they must use their own judgment in determining the amount of loss claimed in the form. 44 C.F.R. pt. 61 app. A(l), art. VII.J. The Gunters were thus not bound by the estimate in the adjuster’s report, but rather were obligated to claim the amount of loss they believed they should recover. Their duress argument fails. Third, the Gunters argue that Farmers repudiated the policy, relieving them of any obligation to file a supplemental proof of loss. We have not yet determined whether the doctrine of repudiation applies to the SFIP, and other circuits addressing the question are split. Compare Studio Frames Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 381-83 (4th Cir.2004), with Jacobson v. Metro. Prop. & Cas. Ins. Co., 672 F.3d 171, 176-77" }, { "docid": "7141996", "title": "", "text": "Doc. 137, Greer Affidavit (affirming that he emailed an itemized list “to Mr. David Edwards as a basis of ‘Proof of Loss’ ”). E-mailing Fidelity a list of the damaged property, even if intended to serve “as a basis” for a proof of loss, does not satisfy this condition precedent to suit. As to this issue, the Eighth Circuit opinion in Mancini v. Redland Insur. Co., supra, 248 F.3d at 729 is highly instructive. The insureds in that case suffered a covered loss and thereafter faxed to the insurer a number of itemized forms (none of which were signed or notarized; however, the fax transmittal sheet did carry the insureds’ printed names). The district court held that the insureds “believed that, by submitting the forms to [the insurer] accompanied by a transmittal letter bearing their printed names, they had signed and sworn to the proof of loss.” Id. at 732-33. The Eighth Circuit reversed, finding that even though the insureds provided the information requested of them, the forms were not “signed and sworn” as required and thus there was not strict compliance. The court held: “Given the special nature of this policy, the [insured] must show actual and complete compliance with this requirement: it is not sufficient to show that they substantially complied or that the insurer suffered no prejudice.” Id. at 734 (citations omitted). Accordingly, any argument for substantial compliance must fail. b. Waiver. Next, the plaintiffs may be arguing that Fidelity waived the proof of loss requirement by processing and, in fact, paying out a portion of their claim. The Eleventh Circuit has made clear, however, that a waiver argument is viable in this context only where there is an actual written waiver from the Federal Insurance Administrator [see Sanz, supra, 328 F.3d at 1318-19], a circumstance not present here. Other courts have agreed. For example, the insured in Jamal v. Travelers Lloyds of Texas Ins. Co., 131 F.Supp.2d 910 (S.D.Tex.2001) argued that his insurance company waived the proof of loss defense because it paid out part of the claimed damages; specifically, the insurer there paid the full" }, { "docid": "7141993", "title": "", "text": "you.” SFIP, § O, Art. 8. It also must include certain information necessary for the insurance company to process the claim. The policy further warns the insured that they are required to submit a proof of loss even if the adjuster acting on behalf of the WYO company does not provide them with a form. Satisfaction of the proof of loss requirement is a condition precedent to recovery under a SFIP, which must be strictly construed. See Sanz v. U.S. Security Insur. Co., 328 F.3d 1314, 1318 (11th Cir.2003); Suopys v. Omaha, supra, 404 F.3d at 810; Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Redland Insur. Co., 248 F.3d 729, 733-34 (8th Cir. 2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir.2000); Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir.1998); M.D. Phelps v. FEMA, 785 F.2d 13 (1st Cir.1986). Thus, substantial compliance is not enough, and an insured must completely satisfy the proof of loss requirement, including the requirement that the statement is signed and sworn, before an insured can receive benefits under a SFIP. Sanz, supra, 328 F.3d at 1317. Plaintiffs have not filed a formal opposition to Fidelity’s motion for summary judgment. Instead, in an apparent attempt to refute the proof of loss defense, the plaintiffs have filed the affidavits, email, and other evidence noted in section II.A above. Although not articulated as such, by this evidence the plaintiffs may be attempting to argue that: i) they complied substantially with the spirit, if not letter, of the proof of loss requirement by giving Fidelity notice, ii) Fidelity waived the proof of loss defense by paying part of the claim, and/or iii) Fidelity is estopped from asserting the proof of loss requirement as a ground for denying the plaintiffs’ claim. Each argument will be considered, and ultimately rejected, below. I do not reach this decision lightly or without reservation, however. In all fairness, it appears undisputed that the plaintiffs’ contents and personal property were damaged by the flood water, thus bringing the loss within the ambit of the SFIP. Moreover, despite" }, { "docid": "10561900", "title": "", "text": "compliance” with the SFIP’s proof-of-loss requirement. Id. at 391. Enforcing strict compliance with the SFIP also arises from the doctrine of sovereign immunity. Given that it is the government’s liability at stake in any suit against a WYO insurer, compliance with the proof-of-loss provision serves as a “condition[ ] precedent to a waiver by the federal government of its sovereign immunity.” Wagner v. Dir., Fed. Emergency Mgmt. Agency, 847 F.2d 515, 518 (9th Cir.1988). As we have explained, “[i]t has long been established that the [government] is not subject to suit without a waiver -of sovereign immunity, and that any such waiver is to be strictly construed.” Progressive Consumers Fed. Credit Union v. United States, 79 F.3d 1228, 1230- (1st Cir.1996). Where waiver depends on compliance with the terms of a federal insurance policy, it follows that the terms of that policy must also be strictly construed and enforced. See Mancini v. Redland Ins. Co., 248 F.3d 729, 734-35 (8th Cir.2001). In Phelps v. Federal Emergency Management Agency, 785 F.2d 13 (1st Cir.1986), we upheld strict compliance with the SFIP’s written proof-of-loss requirement and refused to apply the equitable estoppel doctrine against the government although “elements of traditional estoppel [were] plainly present.” Id. at 16-17, 19. “[Considerations of sovereign immunity and constitutional grounds — [such as] the potential for interference with the separation of governmental powers” — motivated our refusal to apply equitable estoppel against the government, “no matter how compelling the circumstances.” Id. at 17. The need for uniformity in federal law also supports strict construction of the SFIP. Such uniformity provides clarity to the numerous insurance companies issuing the bulk of insurance policies under the NFIP, as well as the diverse jurisdictions inundated with flood insurance disputes in the aftermath of national disasters. Insurance companies and policyholders need clear rules to ensure a fast response to policyholders’ claims after these disasters. Relatedly, we noted in Phelps that Congress established the NFIP because many factors made it uneconomical for private insurance companies to offer affordable flood insurance. 785 F.2d at 14; see also 42 U.S.C. § 4001(a), (b). “[A]" }, { "docid": "632462", "title": "", "text": "520 (1931); Johnson v. United States Fire Ins. Co., 586 F.2d 1291, 1294 n. 7 (8th Cir.1978); see also United States v. American R. Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 563-64, 68 L.Ed. 1087 (1924); Joseph v. Norman’s Health Club, Inc., 532 F.2d 86, 88 n. 2 (8th Cir.1976); Robicheaux v. Radcliff Material, Inc., 697 F.2d 662, 668 (5th Cir.1983); cf. Wycoff v. Menke, 773 F.2d 983, 985 (8th Cir.1985) (cross-appeal not necessary when party only seeks to sustain lower court decision); United States v. Unger, 700 F.2d 445, 450 (8th Cir.1983) (failure to file for rehearing precludes challenging appellate decision in later proceeding). Bethea claims that he could not cross-appeal since he was completely satisfied with the district court’s judgment. This argument is without merit. Parties who receive all the relief sought are prohibited from appealing, not parties who are satisfied with the final judgment. Watson v. Newark, 746 F.2d 1008 (3d Cir.1984). It is clear from the record that Bethea did not receive all the relief he requested. After the jury returned its verdict, Bethea filed a motion requesting the district judge to grant him additional equitable relief that would supplement the jury award. The district court denied this motion in its final order of August 27, 1987. Therefore, even though Bethea may have been satisfied with his award, he clearly did not receive all that he requested. If Bethea had filed a protective cross-appeal, he would not be in this situation. The Eighth Circuit did not address the issue of granting further relief to Bethea in its original mandate, because it had no authority to do so. Bethea’s failure to file a cross-appeal estopped him from requesting further relief from the Eighth Circuit. When the Eighth Circuit decided to affirm in part and reverse in part the district court decision, Bethea filed motions for rehearing in which he argued for further equitable relief on the affirmed portion of the district court decision. Even if a rehearing had been granted, the Eighth Circuit could not have expanded Bethea’s rights because he failed to cross-appeal. On" }, { "docid": "7141992", "title": "", "text": "1313 (11th Cir.1999). 2. Fidelity’s Policy: Flood Insurance (Dwelling and Contents Claim) Even though Florida’s Valued Policy Law does not apply to the plaintiffs’ flood insurance policy, the plaintiffs’ breach of contract claim is also based on the allegation that Fidelity did not pay the full amount of damages caused by flooding. In particular, the plaintiffs argue there was a breach of contract because Fidelity only paid out $71,456.90 for damage to the dwelling (which was purportedly inadequate) and did not tender any payment at all for damage to the personal property. With respect to this claim, Fidelity contends that the plaintiffs are barred from seeking additional damages based on them flood insurance policy because the plaintiffs failed to satisfy a procedural prerequisite in handling their claim. Specifically, the SFIP issued to the plaintiffs requires that a proof of loss be submitted by the insured within 60 days of the loss. A proof of loss is defined as a “statement as to the amount you are claiming under the policy signed and sworn to by you.” SFIP, § O, Art. 8. It also must include certain information necessary for the insurance company to process the claim. The policy further warns the insured that they are required to submit a proof of loss even if the adjuster acting on behalf of the WYO company does not provide them with a form. Satisfaction of the proof of loss requirement is a condition precedent to recovery under a SFIP, which must be strictly construed. See Sanz v. U.S. Security Insur. Co., 328 F.3d 1314, 1318 (11th Cir.2003); Suopys v. Omaha, supra, 404 F.3d at 810; Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Redland Insur. Co., 248 F.3d 729, 733-34 (8th Cir. 2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir.2000); Gowland v. Aetna, 143 F.3d 951, 955 (5th Cir.1998); M.D. Phelps v. FEMA, 785 F.2d 13 (1st Cir.1986). Thus, substantial compliance is not enough, and an insured must completely satisfy the proof of loss requirement, including the requirement that the statement is signed and sworn, before" }, { "docid": "13209507", "title": "", "text": "... to recover money under th[eir] policy unless [they] have complied with all the requirements of the policy.” 44 C.F.R. pt. 61 app. A(1), art. VII.R. One of these stated requirements is filing a proof of loss within 60 days of the flood. Id., art. VII.J.4. The SFIP defines the proof of loss as “your statement of the amount you are claiming under the policy signed and sworn to by you.” Id. While an insurance adjuster may provide the proof of loss form or assist the insured in preparing it, the SFIP is clear that insureds must use their own judgment concerning the amount of loss. Id., art. VII.J.5, J.7. If the proof of loss is rejected, the insured has the option under the SFIP to accept the denial, to file an amended proof of loss within the original sixty days, or to exercise the rights under the policy. Id., art. VII.M.2. As the proof of loss requirement is a regulatory limit on the disbursement of funds through a federal insurance program, it is to be strictly construed and serves as a condition precedent to recovery under the SFIP. Mancini v. Redland Ins. Co., 248 F.3d 729, 733 (8th Cir.2001). When strictly construing SFIP requirements in Mancini, we determined that a proof of loss was invalid when accompanied by a transmittal letter only bearing the printed names of the insured, for it had not been “signed and sworn” as required by SFIP article VII.J.4. Id. at 734-35. The Gunters argue that our analysis in Mancini does not apply here because unlike the appellants in that case, they timely filed a valid proof of loss for the amount of their undisputed damage, thereby fulfilling the prerequisites for suing on the disputed amount of loss on the same residence. A similar argument was rejected by the First Circuit in DeCosta v. Allstate Insurance. Company, 730 F.3d 76 (1st Cir.2018). The insured in DeCosta included with two timely filed proof of loss forms a sixteen page estimate from one of his adjusters claiming additional loss on the property. Id. at 78-79. After the" }, { "docid": "3802861", "title": "", "text": "occupancy of the covered property during the term of the policy; f. Specifications of damaged buildings and detailed repair estimates; g. Names of mortgagees or anyone else having a lien, charge, or claim against the insured property; h. Details about who occupied any insured building at the time of loss and for what purpose; and i. The inventory of damaged personal property described in [Article] J.3. above. Id. Article VII(J)(5) further instructs insureds that when completing the proof of loss they should use their own judgment concerning the amount of loss “and justify that amount.” Art. VII(J)(5). Under the SFIP, an insured may not file suit for coverage unless it has complied with all requirements of the policy. See 44 C.F.R. Pt. 61, App. A(1), Art. VII(R) (2003) (“Article VII(R)”). Strict adherence to the proof of loss requirements is a condition precedent to recovery under the SFIP. See Sanz v. United States Security Insurance Co., 328 F.3d 1314, 1318 (11th Cir.2003); Suopys v. Omaha Property and Casualty, 404 F.3d 805, 810 (3rd Cir.2005); Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Redland Insurance Co., 248 F.3d 729, 733-34 (8th Cir.2001). Substantial compliance is not sufficient; rather, an insured must completely satisfy the proof of loss requirements before any monetary claim can be awarded. See Sanz, 328 F.3d at 1318. An insured’s “failure to provide a complete, sworn proof of loss statement ... relieves the federal insurer’s obligation to pay what otherwise might be a valid claim.” See Gowland, 143 F.3d at 954. DISCUSSION In this case, the parties agree that Sun Ray timely submitted its proof of loss for each damaged building. The parties also agree that Sun Ray’s proofs of loss satisfied the requirements in Article VII(J)(4) that they be signed and sworn to and state a sum certain for the amount of loss claimed. Finally, the parties agree that Sun Ray did not submit any supporting documentation with its proofs of loss. The parties disagree over whether the SFIP required Sun Ray to submit documentation supporting its proofs of loss, including “detailed repair estimates,” beyond the" }, { "docid": "11188772", "title": "", "text": "as a matter of law. The district court reasoned that because Sanz did not file a proof of loss as required by his insurance policy, his claim must necessarily fail. The district court relied on decisions from the Eighth and Fifth Circuits and concluded that individuals insured via federal flood insurance policies must adhere strictly to all conditions precedent contained in their policies. II. DISCUSSION A. Strict Compliance with Policy Conditions The issue in this case is whether the district court correctly determined that all conditions precedent must be fulfilled before an individual may receive benefits under a federal flood insurance contract. Five of our sister circuits that have addressed this issue have all concluded that there must be strict compliance with the terms and conditions of federal flood insur- anee policies and that the failure to file a proof of loss prohibits a plaintiff from recovery. Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Redland Ins. Co., 248 F.3d 729 (8th Cir.2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir.2000); Gowland v. Aetna, 143 F.3d 951 (5th Cir.1998); Phelps v. Fed. Emergency Mgmt. Agency, 785 F.2d 13 (1st Cir.1986). But see Meister Bros., Inc. v. Macy, 674 F.2d 1174 (7th Cir.1982). In reaching this conclusion, these circuit courts have all relied on Federal Crop Ins. Corporation v. Merrill, 332 U.S. 380, 384-85, 68 S.Ct. 1, 92 L.Ed. 10 (1947), where the Supreme Court held that an insured must comply strictly with all terms and conditions of a federal insurance policy. In Merrill, the Supreme Court recognized the “duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Id. at 385, 68 S.Ct. 1. In Flick, 205 F.3d at 391, the court recognized that, since Merrill, the Supreme Court, in Office of Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990), further curtailed the ability of those individuals insured via the federal government to avoid the terms and conditions of their policies. See generally Dawkins, 318 F.3d at 611; Mancini, 248 F.3d at" }, { "docid": "13209505", "title": "", "text": "F.Supp.2d 675, 678-79 (E.D.Tex.2004). The NFIP specifically allows a policyholder to sue a WYO insurer for breach of contract, 42 U.S.C. §§ 4053, 4072, but it does not contemplate extracon-tractual claims such as negligence or actions for a declaratory judgment. The reference to “federal common law” in the SFIP has been understood to direct courts to look to “standard principles of interpreting insurance contracts when resolving questions” about coverage, not to expand available remedies or causes of action. Wright, 500 F.3d at 397; see also Scritchfield, 341 F.Supp.2d at 681-82. In sum, the Gunters seek to bring tort and extracontractual claims under federal common law to obtain state law remedies otherwise preempted. It would frustrate the intent of Congress to allow preempted state law claims to’ proceed under the guise of federal common law. We conclude that this claim was properly dismissed. We also affirm the grant of Farmers’ motion to quash the jury request made by the Gunters. In an action involving federal funds, a plaintiff is only entitled to a jury trial if Congress has granted that right by statute. See Grissom v. Liberty Mut. Fire Ins. Co., 678 F.3d 397, 401 (5th Cir.2012) (citing Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981)). The parties agree that the Gunters’ breach of contract claim puts federal funds at stake, and thus a jury trial was not available to the Gunters. III. We review de novo a district court’s grant of summary judgment. Argenyi v. Creighton Univ., 70S F.3d 441, 446 (8th Cir.2013). Construing all facts and drawing all reasonable inferences in favor of the nonmoving party, summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Id. The district court granted summary judgment to Farmers on the ground that the Gunters had failed to file a supplemental proof of loss and thus did not satisfy the prerequisites for suing on their additional claims. Under the terms of the SFIP the Gunters “may not sue" }, { "docid": "13209512", "title": "", "text": "cannot show that they had no alternative to accepting the damage estimate in the U.S. Forensic report. See Howell v. State Farm Ins. Co., 540 F.Supp.2d 621, 632 (D.Md.2008). The SFIP explains that the proof of loss is the Gunters’ own statement; even if assisted by an adjuster, they must use their own judgment in determining the amount of loss claimed in the form. 44 C.F.R. pt. 61 app. A(l), art. VII.J. The Gunters were thus not bound by the estimate in the adjuster’s report, but rather were obligated to claim the amount of loss they believed they should recover. Their duress argument fails. Third, the Gunters argue that Farmers repudiated the policy, relieving them of any obligation to file a supplemental proof of loss. We have not yet determined whether the doctrine of repudiation applies to the SFIP, and other circuits addressing the question are split. Compare Studio Frames Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 381-83 (4th Cir.2004), with Jacobson v. Metro. Prop. & Cas. Ins. Co., 672 F.3d 171, 176-77 (2d Cir.2012). Here we do not need to decide whether repudiation can excuse noncompliance with the proof of loss requirement because the doctrine of repudiation does not apply. Cf. Jacobson, 672 F.3d at 177. Farmers did not disavow the policy, contend that it was not bound by the policy’s terms, or attempt to return to the Gunters the premiums paid under the policy. Id. at 177-78. Rather, Farmers timely adjusted the claim and paid the Gunters the amount claimed in their February 2010 proof of loss. Fourth and finally, the Gunters argue that the enforcement of the proof of loss requirement is a violation of due process. Other courts have rejected this argument, and we agree. The proof of loss requirement is by all indications a “reasonable means of advancing the NFIP’s objectives of quickly compensating insureds while at the same time managing the program’s impact on the federal treasury.” Howell, 540 F.Supp.2d at 633; see also Schumitzki v. Dir., Fed. Emergency Mgmt. Agency, 656 F.Supp. 430, 433 (D.N.J.1987). We therefore conclude that the Gunters’" }, { "docid": "14496327", "title": "", "text": "interpreted like any private insurance contract, thus allowing him the benefit of a more liberal interpretation of the proof-of-loss requirement with which he failed to comply. While we have not specifically addressed the interpretation of SFIP proof-of-loss requirements, many of our sister circuits have done so and have uniformly held that those requirements must be strictly construed and enforced. See, e.g., Evanoff v. Standard Fire Ins. Co., 534 F.3d 516 (6th Cir.2008); Shuford v. Fidelity Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337 (11th Cir.2007); Phelps, 785 F.2d 13; Suopys v. Omaha Prop. & Cas., 404 F.3d 805 (3d Cir.2005); Dawkins v. Witt, 318 F.3d 606 (4th Cir.2003); Mancini v. Red-land Ins. Co., 248 F.3d 729 (8th Cir.2001); Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d 386 (9th Cir.2000); Gowland v. Aetna, 143 F.3d 951 (5th Cir.1998). We adopt the same standard here. We do so in part because “[t]here is a compelling interest in assuring uniformity of decision in cases involving the NFIP.” Flick, 205 F.3d at 390. But even if we were the first to address the issue, we would reach the same conclusion. In a private insurance context, policy exclusions and limitations “are to be accorded a strict and narrow construction.” Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304, 311, 486 N.Y.S.2d 873, 476 N.E.2d 272 (1984). Ordinarily, such a construction is to the benefit of the insured: strict construction makes the terms of the policy easier to understand and easier to satisfy. In some contexts, the result following such a construction may offend equitable principles. When that occurs, a court may be justified in invoking other principles on behalf of an innocent insured in order to accomplish the design of an insurance policy. See, e.g., Lane v. Sec. Mut. Ins. Co., 96 N.Y.2d 1, 4-6, 724 N.Y.S.2d 670, 747 N.E.2d 1270 (2001). But when private parties make demands on the public fisc, different principles are at stake. “Where federal funds are implicated, the person seeking those funds is obligated to familiarize himself with the legal requirements for receipt of such funds.” Wright v." }, { "docid": "17690332", "title": "", "text": "homeowners can buy “Standard Flood Insurance Policies” that promise indemnification for damage caused by flood or rising waters. In 1973, Congress expanded flood protection (via the Flood Disaster Protection Act, 42 U.S.C. § 4121) to include any “collapse or subsidence of land along the shore of a lake or other body of water as a result of erosion or undermining caused by waves or currents of water exceeding anticipated cyclical levels.” 42 U.S.C. § 4121(c). The Flood Insurance Administration, a component of the Federal Emergency Management Administration (“FEMA”), administers the National Flood Insurance Program pursuant to the authority granted by 42 U.S.C. § 4081(a). FEMA created the “Write Your Own” program in 1983. 44 C.F.R. §§ 62.23-24. Under this program, private insurance companies, such as [Standard Fire], issue Standard Policies as fiscal agents of the government. 44 C.F.R. § 62.23. FEMA has the sole authority to prescribe the terms and conditions of the Standard Policy, and the Standard Policy must be issued without alteration (except by the written consent of the Federal Insurance Administrator). 44 C.F.R. §§ 61.4(b), 61.13(d), 62.23(c), 62.23(d). Neuser v. Hooker, 246 F.3d 508, 509-10 (6th Cir.2001) (internal footnote omitted). See also Bruinsma v. State Farm Fire and Cas. Co., 410 F.Supp.2d 628, 631-32 (W.D.Mich.2006) (providing cogent description of NFIP program). Consequently, Standard Fire functions here as a fiscal agent of the United States, rather than as a purely private insurance company, 42 U.S.C. § 4071(a)(1), and Evanoffs SFIP is funded by the federal treasury. See Mancini v. Redland Ins. Co., 248 F.3d 729, 733 (8th Cir.2001); Gowland, 143 F.3d at 953. Standard Fire’s motion for summary judgment was premised on its claim that Evanoff did not timely provide a proof of loss, as required by plaintiffs SFIP and 44 C.F.R. § 61, App. A(2)(J)(4). Evanoff argues on appeal that he provided “each and every item required” by the SFIP, including a letter that contained his signature. Evanoff essentially concedes that his letter was not notarized or otherwise sworn, but contends that because any false statement made to Standard Fire (acting as an agent of the government)" } ]

[ { "docid": "22664364", "title": "", "text": "World-Wide Volkswagen Corp. v. Woodson, 444 U. S., at 297; see also n. 18, supra. We also have emphasized that jurisdiction may not be grounded on a contract whose terms have been obtained through “fraud, undue influence, or overweening bargaining power” and whose application would render litigation “so gravely difficult and inconvenient that [a party] will for all practical purposes be deprived of his day in court.” The Bremen v. Zapata Off-Shore Co., 407 U. S., at 12, 18. Cf. Fuentes v. Shevin, 407 U. S. 67, 94-96 (1972); National Equipment Rental, Ltd. v. Szukhent, 375 U. S. 311, 329 (1964) (Black, J., dissenting) (jurisdictional rules may not be employed against small consumers so as to “crippl[e] their defense”). Just as the Due Process Clause allows flexibility in ensuring that commercial actors are not effectively “judgment proof” for the consequences of obligations they voluntarily assume in other States, McGee v. International Life Insurance Co., 355 U. S., at 223, so too does it prevent rules that would unfairly enable them to obtain default judgments against unwitting customers. Cf. United States v. Rumely, 345 U. S. 41, 44 (1953) (courts must not be “‘blind’” to what “ ‘[a]ll others can see and understand’ ”). For the reasons set forth above, however, these dangers are not present in the instant case. Because Rudzewicz established a substantial and continuing relationship with Burger King’s Miami headquarters, received fair notice from the contract documents and the course of dealing that he might be subject to suit in Florida, and has failed to demonstrate how jurisdiction in that forum would otherwise be fundamentally unfair, we conclude that the District Court’s exercise of jurisdiction pursuant to Fla. Stat. §48.193(1)(g) (Supp. 1984) did not offend due process. The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Powell took no part in the consideration or decision of this case. Burger King’s standard Franchise Agreement further defines this system as “a restaurant format and operating system, including a recognized design, decor, color" } ]

[ { "docid": "1576470", "title": "", "text": "of default demanding payment of the balance of the note within ten days and explicitly stating NSI’s insistence on the strict terms of the contract. The district court granted summary judgment in favor of NSI on the complaint and the counterclaim. Jurisdiction Defendants contested jurisdiction of the district court on the ground that they were not “doing business” within the state under the Georgia Long-Arm Statute, Ga. Code Ann. § 24-113.1(a). Without passing on that argument, the district court held that the defendants had expressly agreed in the promissory note that for the “purpose of service of process [they] shall be deemed to be doing business in the State of Georgia and subject to the jurisdiction of the State of Georgia.” Relying on this agreement, the district court correctly held the defendants were subject to the jurisdiction of the court. Defendants make a belated argument to this Court, not made to the district court, that Ga.Code Ann. § 24-112 prohibits the grant of jurisdiction to a court by consent of the parties. Defendants have cited no cases in support of this contention. That Georgia statute surely could not prevent the parties from agreeing on the fact of doing business, especially where the evidence tends to support the fact in the first place. It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. Lanning v. Lanning, 245 Ga. 19, 262 S.E.2d 788 (1980); Kuller v. Beard Properties, Inc., 157 Ga. App. 57, 276 S.E.2d 111, 113 (1981); Slaughter v. Faust, 155 Ga.App. 68, 270 S.E.2d 218, 220 (1980). The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, - U.S. -, -, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492, 502 (1982). Advance consent to the jurisdiction of a particular court in a contract is one such arrangement. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964); Rauch v. Day & Night Manufacturing Corp., 576 F.2d" }, { "docid": "1576471", "title": "", "text": "no cases in support of this contention. That Georgia statute surely could not prevent the parties from agreeing on the fact of doing business, especially where the evidence tends to support the fact in the first place. It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. Lanning v. Lanning, 245 Ga. 19, 262 S.E.2d 788 (1980); Kuller v. Beard Properties, Inc., 157 Ga. App. 57, 276 S.E.2d 111, 113 (1981); Slaughter v. Faust, 155 Ga.App. 68, 270 S.E.2d 218, 220 (1980). The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, - U.S. -, -, 102 S.Ct. 2099, 2105, 72 L.Ed.2d 492, 502 (1982). Advance consent to the jurisdiction of a particular court in a contract is one such arrangement. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964); Rauch v. Day & Night Manufacturing Corp., 576 F.2d 697, 700 (6th Cir.1978); Cowan v. Rosebud Sioux Tribe, 404 F.Supp. 1338, 1340 (D.S.D.1975). The argument that the district court could not assert personal jurisdiction over the defendants after they had agreed otherwise was frivolous. Summary Judgment Defendants contend that questions of material fact negate the propriety of summary judgment in favor of plaintiff. The purported questions of fact were the existence of a quasi new agreement based on plaintiff’s acceptance of late payments and the reasonableness of plaintiff’s notice of its intention to rely on the exact terms of the promissory note. Georgia law labels a departure from the terms of a contract under which money has been paid or received a “quasi new agreement,” and once there is such an agreement reasonable notice must be given of intention to rely on the exact terms of the agreement before recovery can be had for failure to adhere to the letter of the agreement. Ga.Code Ann. § 20-116. Whether or not a quasi new agreement was created by acceptance of the late payments, defendants have" }, { "docid": "10248283", "title": "", "text": "Bonds, issued by the Housing Finance Authority of Volusia County, Florida, to the debtor. The loan was in the amount of $4,900,000.00 and was secured by a mortgage and note which granted American Pioneer a first priority security interest in all of the real and personal property owned by Mallards. 2. Toward the end of 1985 and in early 1986 the limited partnerships were marketed and sold. The limited partners’ contribution was in the form of individual notes, payable to the limited partnership over a period of four years. These notes were subsequently pledged as security for a loan obtained from Northwest Mutual Savings Associations. 3. Later, at the time of syndication, the name of Mallards of Brandywine, Ltd. was changed to Brandywine Associates, Ltd. (the debtor) and the general partner was changed to Southmark Associates (“South-mark”), a Florida general partnership comprised of the original partners plus one additional partner. 4. The partnership agreement entered into contemplated that there would be an operation deficit for the first three years. Under the terms of the agreement the general partner was required to contribute sufficient funds to meet operation deficiencies, including debt service, for this period. 5. In July, 1987, the debtor defaulted on its obligations to the bank. Soon after-wards, a majority of the debtor’s limited partners defaulted on their obligations to the debtor. The debtor then attempted to extract debt concessions from the bank. These efforts were unsuccessful and in late September the bank delivered a notice of default and demand for payment, which was followed by the filing of the debtor’s Chapter 11 petition on October 7, 1987. 6. At the time of the filing of the petition, the debtor’s sole asset was, and continues to be, the real and personal property comprising the Brandywine apartment complex. The debtor has no employees, and has no significant unsecured creditors. In addition, testimony was presented that within the seventy-five days prior to filing bankruptcy there had been disbursements to or for the account of general partners of Southmark, although no such payments were disclosed on the debtor’s Statement of Financial Affairs." }, { "docid": "1026603", "title": "", "text": "a jury trial has been demanded. On the same day that J.K. Harris filed its Motion to Withdraw the Reference, it also filed a Motion for Partial Summary Judgment in the bankruptcy court, (Docket No. 2), in which it argues that the third count of the Amended Complaint, the claim for unjust enrichment, must be dismissed because a plaintiff may not assert such a claim where the parties’ relationship is governed by a contract. Ms. Allen filed her response to the Motion for Partial Summary Judgment on April 12, 2005. (Docket Nos. 8, 11). After considering the propriety of federal jurisdiction over the claims, this Court granted the Motion to Withdraw the Reference on June 1, 2005. (Docket No. 3). On April 25, 2005, Ms. Allen filed a Motion for Remand (Docket No. 12), in which she argues that (1) pursuant to 28 U.S.C. § 1334(c)(2), the district court must abstain from hearing the case; (2) pursuant to 28 U.S.C. § 1334(c)(1), permissive abstention is appropriate; or (3) the Court should remand the matter to state court pursuant to 28 U.S.C. § 1452(b) on equitable grounds. J.K. Harris filed its opposition to the Motion to Remand on May 10, 2005, Ms. Alien filed a reply to the opposition on May 23, 2005, and J.K. Harris filed a surreply on June 6, 2005. With respect to the Motion to Remand, the Court must consider whether (1) abstention is required under the Bankruptcy Code; (2) in the absence of mandatory abstention, whether discretionary abstention is appropriate under these circumstances; and (3) remand to the state court on an equitable basis is appropriate. I. Propriety of Abstention A. Mandatory Abstention from Adjudicating Ms. Allen’s Claim Ms. Allen first directs the Court’s attention to 28 U.S.C. § 1334(c)(2), which states that federal courts “shall abstain” from exercising jurisdiction over a bankruptcy proceeding where a party timely moves for abstention with respect to a proceeding based upon a state law claim that does not arise under a bankruptcy case and could be “timely adjudicated” in the state forum. 28 U.S.C. § 1334(c)(2). The Court notes" }, { "docid": "12083421", "title": "", "text": "(1982) (quoting National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 811, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964)); see also Petrowski v. Hawkeye-Security Co., 350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956). The enforcement of an agreement conferring jurisdiction does not offend due process where the provision is freely negotiated and not unreasonable or unjust. See Burger King, 471 U.S. at 472, 473 n. 14, 105 S.Ct. at 2181, 2182 n. 14; see also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972); Cf. Shawmut Boston Int’l Banking Corp. v. Duque-Pena, 767 F.2d 1504, 1507 (11th Cir.1985). Thayer has not presented any evidence that the agreement was signed under duress or is unreasonable. Accordingly, having contractually waived his due process right not to be subjected to suit in a forum without sufficient contacts, Thayer cannot now assert that personal jurisdiction in Florida violates his due process rights. CONCLUSION The court’s concern with forum shopping and the avoidance of the inequitable administration of the laws requires that Florida law govern the application of clauses conferring personal jurisdiction. Accordingly, because jurisdiction over Thayer is proper under state law and the due process clause, the district court’s dismissal based on lack of personal jurisdiction is reversed and the case remanded. REVERSED and REMANDED. . See Ely, The Irrepressible Myth of Erie, 87 Harv.L.Rev. 693 (1974). . The information contained in this section is derived from the materials before the district court when it held a hearing on the motion to dismiss. . When Thayer began to work for Proudfoot, Proudfoot was an Illinois general partnership based in Chicago. Between 1975 and 1985, Thayer was assigned overseas to two of Proud-foot’s affiliated companies, first in Brazil and later in Europe. While Thayer was abroad, Proudfoot moved its principal offices from Illinois to Florida. At this time, Thayer executed and accepted the terms of an employment agreement. This agreement included a covenant not to compete and a covenant not to disclose or use confidential information. . The specific contractual language reads as" }, { "docid": "12699411", "title": "", "text": "not discover the alleged fraud more than two years prior to bringing suit. Whether due diligence would have led her to that discovery more than two years before suit was filed is a question for the jury. See Durham v. Business Management Associates, 847 F.2d 1505, 1509 (11th Cir.1988). Such an issue cannot be resolved on a motion to dismiss. See Aldrich v. McCulloch Properties, Inc., 627 F.2d 1036 (10th Cir.1980); Summer v. Land & Leisure, Inc., 571 F.Supp. 380 (S.D.Fla.1983). Therefore, Defendant’s allegation that Plaintiff’s Section 10(b), Rule 10(b)-5 and FIPA claims are time-barred is not persuasive. 2. Common Law Fraud and RICO Claims Defendant also argues that Plaintiff’s common law fraud and RICO claims are time-barred. Under Florida law, actions for fraud are subject to a four-year statute of limitations. Florida Statutes, § 95.11(3)(j). The statute of limitations for Florida RICO claims is five years. Florida Statutes, § 895.05(10). The statute of limitations for Federal RICO claims is five years from the date of the last predicate act. See 18 U.S.C. § 3282. Defendant Hutton points out that the statute of limitations for an action based on fraud is strictly construed against the party bringing the action and that the statute of limitations begins to run when the alleged basis for the action was either discovered or should have been discovered by the exercise of due diligence. Matthews v. Matthews, 222 So.2d 282, 284 (Fla.2d DCA 1969). Defendants further argue that some of the twenty-one limited partnerships that Plaintiff purchased between May, 1982 and September, 1986 may be time-barred because they occurred prior to four years from the date of filing this action. Plaintiffs claim that the statute of limitations was tolled because Hutton’s representative, Shouse, fraudulently concealed investment facts from Plaintiff (Paragraph 6 of Complaint). The doctrine of equitable tolling has been considered by this Court in Armbrister v. Roland International Corp., 667 F.Supp. 802 (M.D.Fla.1987). Armbrister involved a series of summary judgments sought by aggrieved investors who had purchased Florida real estate. The court was faced with the task of sorting out and applying various limitation" }, { "docid": "20341581", "title": "", "text": "MEMORANDUM OPINION AND ORDER McGARR, Chief Judge. In 1974, an Illinois limited partnership was organized that included plaintiff Harold G. Norman (“Norman”) and defendant Darwin P. Kal (“Kal”) as limited partners, as well as two other general partners. At all relevant times, Norman was a Florida resident, while Kal resided in Illinois. The purpose of the partnership was to develop a residential apartment building. Financing for this project was provided by a Massachusetts trust company, which demanded a letter of credit from the partnership as a requirement for issuing the construction loan. A $75,000 letter of credit was obtained from a Florida bank, and it was guaranteed by all the partners. Unfortunately for these litigants, the construction project went into default. The Massachusetts company then drew down on the letter of credit. In 1975, the Florida bank sued on the guaranty of the letter of credit in a Florida state court. In that lawsuit, Norman cross-claimed against Kal for contribution on the amount guaranteed to the bank. Although Kal was served with copies of the pleadings, he never appeared or answered. Norman obtained an order of default against Kal on the crossclaim in June, 1976. On November 15, 1976, Norman executed a promissory note for $90,489.00 in favor of the Florida bank as a full discharge of his obligations under the guaranty. In April, 1978, Norman obtained a final judgment against Kal in the amount of $45,244.83. Shortly thereafter, Norman attempted to register this judgment in a Cook County Circuit Court. Kal admitted the existence of the Florida judgment, but pleaded the Florida court’s lack of personal jurisdiction over him as a defense. The circuit court rejected this argument and entered summary judgment against Kal. However, this judgment was reversed on appeal. Norman v. Kal, 88 Ill.App.3d 81, 43 Ill.Dec. 316, 410 N.E.2d 316 (1st Dist.1980). The appellate court agreed that the Florida court did not have either in personam or long arm jurisdiction over Kal, and consequently the default judgment on the crossclaim between Norman and Kal was invalid. On February 9, 1981, Norman filed the instant equitable action" }, { "docid": "1745336", "title": "", "text": "has been granted as to plaintiffs’ federal claim and since there are no exceptional circumstances here, this Court will not exercise pendent jurisdiction in this case. If plaintiffs wish to assert claims against defendants under state law, they should file an appropriate suit in a state court. For these reasons, defendants’ motions for summary judgment will likewise be granted as to Counts Two through Eleven inclusive. IV Conclusion Accordingly, plaintiffs’ motion for summary judgment will be denied, and defendants’ motions for summary judgment will be granted as to all counts. Judgment will therefore be entered in favbr of the defendants, with costs. An appropriate Order will be entered by the Court. . The wife of one of these construction workers has joined her husband as a plaintiff in this suit. References to \"plaintiffs” herein are intended to mean the male plaintiffs. . The complaint also named as defendants J.K. Lemley (an employee of MKSAC) and Milton L. Little (a Colonel in the United States Army Corps of Engineers). Orders have been entered dismissing these two individuals as defendants because of lack of personal jurisdiction or failure of service. . Ten of the eleven counts of the complaint are based on state law. . Defendants’ motions to dismiss the complaint based on the act of state doctrine, forum non conveniens and lack of jurisdiction have previously been denied by this Court. . In a case asserting a claim under Bivens, it is federal rather than state action which must be found before the action can be maintained. However, the doctrine encompassing both concepts is commonly known as \"state action” and that term will be used in this Opinion to mean federal governmental action. • See Dobyns v. E-Systems, Inc., 667 F.2d 1219, 1220 n. 1 (5th Cir.1982). . Holodnak v. Avco Corp., 514 F.2d 285 (2d Cir.1975), cert. denied 423 U.S. 892, 96 S.Ct. 188, 46 L.Ed.2d 123 (1975), which has also been cited by plaintiffs, involved facts quite different from those present in this case. Moreover, the Holodnak case was decided some seven years before ‘,.0 the Supreme Court’s recent" }, { "docid": "15939461", "title": "", "text": "his favor. Thus there are no merits against which the prejudice to Plaintiff might be balanced. When a defaulting party has alleged no meritorious defense, the expense of prosecuting a suit makes any delay unduly prejudicial. Id. at 255. Accordingly, Defendant’s oral motion to open the default will be denied, and his Answer will not be considered. Defendant is deemed to have admitted Plaintiffs well-pleaded allegations, and the Court will enter judgment accordingly. See Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1205 (5th Cir.1975). The Court determines that Defendant’s debt to Plaintiff is nondischargeable pursuant to Section 523(a)(2)(A). Defendant must pay Plaintiff $23,331.87, plus interest at the rate of 2.5 percent per month from October 29, 1999 to the date of this Opinion, and court costs of $150.00. Furthermore, Plaintiffs discharge will be denied pursuant to Section 727(a)(2)(A), (a)(4)(A), and (a)(5). 2. Attorney Fees The Court will not enter judgment for Plaintiffs attorney fees. Though the Eleventh Circuit has held that attorney fees may be properly awarded in an action to determine dischargeability of debt pursuant to Section 523, “ ‘[tjhe construction of [a] contract for attorney’s fees presents ... a question of local law.’ ” TranSouth Fin. Corp. of Fla. v. Johnson, 931 F.2d 1505, 1507 (11th Cir.1991). (quoting Security Mortgage Co. v. Powers, 278 U.S. 149, 154, 49 S.Ct. 84, 85, 73 L.Ed. 236 (1928)). In TranSouth, the Eleventh Circuit awarded attorney fees on a contract governed by Florida law. A contractual provision for attorney fees is valid, enforceable, and collectible under Georgia law, however, only after the debtor fails to pay the principal and interest within ten days of receiving written notice from the creditor of its intent to enforce such provision. See O.C.G.A. § 13-1-11(a)(3). Georgia’s statute governing contractual attorney fees has been addressed by the United States Supreme Court, the Fifth Circuit prior to September 30, 1981, and the Eleventh Circuit. See generally Sec. Mortgage Co. v. Powers, 278 U.S. 149, 49 S.Ct. 84, 73 L.Ed. 236 (1928); In re East Side Investors, 702 F.2d 214 (11th Cir.1983) (per curiam); In" }, { "docid": "12083420", "title": "", "text": "whether the defendant purposefully established “minimum contacts” with the forum state. International Shoe v. Washington, 326 U.S. at 316, 66 S.Ct. at 158. This analysis requires courts to determine whether “the defendant’s conduct and connection with the forum state are such that he should reasonably anticipate being hailed into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). Because the nonresident defendant in the present case contractually agreed to personal jurisdiction in Florida, the usual due process analysis need not be done. As the Supreme Court noted in Burger King, the due process analysis is unnecessary where a nonresident defendant has consented to suit in a forum. Burger King, 471 U.S. at 472, 473 n. 14, 105 S.Ct. at 2181, 2182 n. 14. Quite simply, “parties to a contract may agree in advance to submit to the jurisdiction of a given court.” Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 704, 102 S.Ct. 2099, 2105, 72 L.Ed. 2d 492 (1982) (quoting National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 811, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964)); see also Petrowski v. Hawkeye-Security Co., 350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956). The enforcement of an agreement conferring jurisdiction does not offend due process where the provision is freely negotiated and not unreasonable or unjust. See Burger King, 471 U.S. at 472, 473 n. 14, 105 S.Ct. at 2181, 2182 n. 14; see also The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972); Cf. Shawmut Boston Int’l Banking Corp. v. Duque-Pena, 767 F.2d 1504, 1507 (11th Cir.1985). Thayer has not presented any evidence that the agreement was signed under duress or is unreasonable. Accordingly, having contractually waived his due process right not to be subjected to suit in a forum without sufficient contacts, Thayer cannot now assert that personal jurisdiction in Florida violates his due process rights. CONCLUSION The court’s concern with forum shopping and the avoidance of the inequitable administration of" }, { "docid": "22121495", "title": "", "text": "not presented a meritorious defense to Broker’s claim that the award of prejudgment interest on punitive damages was made in manifest disregard of the law. Finally, the district court denied the motion to transfer venue to Florida because the action was first filed in New York, there were no special circumstances, and many of the events underlying the action occurred in New York. On September 2, 2003, the Investors filed a Rule 59(e) Motion to Alter or Amend the default judgment. The Investors claimed a due process violation in that the default judgment effectively disposed of the Florida Petition without addressing the merits. They also contended that the district court erred in setting aside the prejudgment interest on punitive damages. The district court denied the motion on May 7, 2004. DISCUSSION a) Personal Jurisdiction We first address the Investors’ claim that the S.D.N.Y. lacked personal jurisdiction over them. “We review district court decisions on personal jurisdiction for clear error on factual holdings and de novo on legal conclusions.” Mario Valente Collezioni, Ltd. v. Confezioni Semeraro Paolo, S.R.L., 264 F.3d 32, 36 (2d Cir.2001) (citing U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 151 (2d Cir.2001)). We hold that the district court properly exercised personal jurisdiction over the parties for two reasons. First, the Investors consented to personal jurisdiction in New York. Second, even absent consent, the Investors transacted business in and had sufficient contacts with New York to allow New York courts to exercise personal jurisdiction over them. 1. Consent Parties can consent to personal jurisdiction through forum-selection clauses in contractual agreements. See Nat’l Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) (“And it is settled ... that parties to a contract may agree in advance to submit to the jurisdiction of a given court .... ”); 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1064, at 344 (3d ed.2002). Here, the Investors consented to jurisdiction in the S.D.N.Y. when they executed their “Cash Account Agreements” with Broker. These Agreements contained a forum-selection" }, { "docid": "18560036", "title": "", "text": "this argument and notes that the Loan Guaranty Agreement, by its own terms, establishes primary liability on the Debtor and his obligation is not secondary and contingent. The fact that Florida National Bank withdrew as a petitioning creditor after the commencement of this case, as noted earlier, is without legal significance. Based on the foregoing, the requirement that an involuntary petition be filed by three entities holding claims which are not contingent as to liability or the subject of a bona fide dispute has been met. Having found that the case was properly commenced, the only matter left for consideration is the determination of whether the Debtor is generally paying his debts as such debts become due. The Debtor, of course, contends that he is paying his debts as they become due and in support of that contention submits an affidavit averring the same. One petitioning creditor, Salmon, filed an affidavit in opposition to Motion for Summary Judgment and attached certified copies of notices of Lis Pendens in three separate foreclosure actions naming Dana Sjostedt, individually, as a defendant and default judgments in two additional civil actions also naming Dana Sjostedt as defendant. The Court could certainly infer from those documents that the Debtor was not paying his debts as they came due, a fact which is disputed by the Debtor, is material to the matter under consideration, and which would preclude a summary judgment in the Debtor’s favor. Howell v. Continental Credit Corp., 655 F.2d 743 (7th Cir.1981). Accordingly, it is ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the Debtor in the above-captioned involuntary case be, and the same is hereby, denied and the matter is hereby set for trial on the issues on March 10, 1986 @ 1:30 p.m." }, { "docid": "5409647", "title": "", "text": "Enterprise Defendants fraudulently induced Waste Tech to enter into the Guaranty with M & T by misrepresenting that Enterprise would manufacture and install the Equipment. DISCUSSION 1) Personal Jurisdiction In this diversity action, the existence of personal jurisdiction is determined by reference to the law of the jurisdiction in which the court sits. The burden of establishing jurisdiction over a defendant, by a preponderance of the evidence, is upon the plaintiff. Until an evidentiary hearing is held, however, the plaintiff need make only a prima facie showing that jurisdiction exists, and this remains true notwithstanding a controverting presentation by the moving party. In the absence of an evidentiary hearing on the jurisdictional allegations, or a trial on the merits, all pleadings and affidavits are construed in the light most favorable to plaintiff, and where doubts exist, they are resolved in the plaintiff’s favor. Hoffritz For Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985) (citations omitted). With respect to jurisdiction over Enterprise, Waste Tech argues that, having discharged the obligations of Enterprise to M & T pursuant to the Enterprise Note and the Loan Agreement, Waste Tech is subro-gated to M & T’s rights and remedies under those agreements and under the Collateral Assignment given to secure Enterprise’s obligations to M & T. In each of those documents, Enterprise consents to the jurisdiction of this Court. Accordingly, Waste Tech argues, this Court has jurisdiction over Enterprise with respect to Waste Tech’s cross-claims. The Court finds this argument persuasive. It is well-established “that parties to a contract may agree in advance to submit to the jurisdiction of a given court,” National Equipment Rental Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964), and such an agreement will be enforced unless it would be unjust or unreasonable to do so. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985). Waste Tech’s first and second cross-claims directly involve enforcement of the Enterprise Note, the Loan Agreement and the Collateral Assignment, each of" }, { "docid": "3062709", "title": "", "text": "Braman v. Mary Hitchcock Mem. Hospital, 631 F.2d 6, 7 (2d Cir.1980); Arrowsmith v. United Press Inti, 320 F.2d 219, 225-26 (2d Cir.1963). . It has been said that the term \"agent” has a broader meaning in the jurisdictional sense than when used in a common law context. See Merkel Associates, Inc. v. Bellofram Corp., 437 F.Supp. 612, 617 n. 2 (W.D.N.Y.1977). . While the burden is ultimately on the plaintiff to prove by a preponderance of the evidence that the court has personal jurisdiction over the defendant, when no evidentiary hearing is held on a motion to dismiss for lack of jurisdiction, the court must view the pleadings and affidavits in the light most favorable to the plaintiff. See Guardino v. American Savings & Loan Ass'n of Florida, 593 F.Supp. 691, 694 (E.D.N.Y.1984); Top Form Mills, Inc. v. Sociedad Nationale Industria Applicazioni Viscosa, 428 F.Supp. 1237, 1241 (S.D.N.Y.1977). . The Supreme Court has recently noted that because the personal jurisdiction requirement is a waivable right, there are a \"variety of legal arrangements” by which a litigant may give \"express or implied consent to the personal jurisdiction of the court.\" Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105 [72 L.Ed.2d.492] (1982). For example, particularly in the commercial context, parties frequently stipulate in advance to submit their controversies for resolution within a particular jurisdiction. See National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). Where such forum-selection provisions have been obtained through “freely negotiated” agreements and are not \"unreasonable and unjust,” The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972), their enforcement does not offend the process. Burger King Corp. v. Rudzewicz, — U.S.-, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985). . Fed.R.Civ.P. 4(e) states: Summons: Service Upon Party Not Inhabitant of or Found Within State. Whenever a statute of the United States or an order of court thereunder provides for service of a summons, or of a notice, or of" }, { "docid": "1026635", "title": "", "text": "a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” 28 U.S.C. § 1452(a). In turn, Section 1334 provides that, with certain exceptions, a district court \"shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11.” 28 U.S.C. § 1334. . It appears that the parties have resolved this issue. Both counsel indicate that Ms. Allen has agreed to filed a Second Amended Complaint which would not include the unjust enrichment allegation. See Memorandum Supporting Motion for Remand at 10 n. 2; April 21 Letter from C. D'Angelo at 2. J.K. Harris interprets Ms. Allen's statement of her intent to file another amended complaint to be a request to file such a complaint in federal court, thereby consenting to federal jurisdiction. . Although the motion is titled a \"Motion to Remand,\" it is better considered as a motion to remand and abstain, as Ms. Allen argues that the Court should abstain from hearing the case and remand it to the state court. . There were additional filings in the adversary proceeding at the bankruptcy level that peripherally will affect the proceedings in district court, and comprise part of the facts upon which J.K. Harris argues that Ms. Allen has waived her right to seek abstention of the matter. For example, on April 26, 2005, Ms. Allen served a Notice of Deposition to Steven H. Kassel, a witness who, it is asserted, will provide testimony as to whether the case should be certified as a class action. Opposition Memo at 4. A subpoena was issued by the United States District Court for the Northern District of California and was subsequently served upon Mr. Kassel. Opposition Memo at 4. On May 6, 2005, J.K. Harris moved in the bankruptcy court (now in this Court) to quash the subpoena, and Ms. Allen agreed to postpone the deposition until the motion could" }, { "docid": "2866954", "title": "", "text": "of the Netherlands and Spain, respectively. Both were served by registered mail. Accordingly, before proceeding to the merits of this dispute, the Court must consider their cross-motion to dismiss the action as against them on the ground that they are not subject to the personal jurisdiction of this Court. Section 10.11 of the Purchase Agreement provides in relevant part: “Each of the parties (including the Shareholders) hereto hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America, in each case located in the County of New York, for any Litigation arising out of or relating to this Agreement and the transactions contemplated hereby ... and further agrees that service of any process, summons, notice or document by U.S. registered mail to its respective address set forth in Section 10.10 shall be effective service of process for any Litigation brought against it in any such court.” (de Geus Aff. Ex. D § 10.11) (Emphasis supplied) De Geus and Loeffelhardt were served in accordance with the terms of the Agreement. Accordingly, they have no proper objection to personal jurisdiction. E.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 315-16, 84 S.Ct. 411, 414-15, 11 L.Ed.2d 354 (1964); Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268, 1276 (2d Cir.1971). Their cross-motion to dismiss is frivolous and is denied. The Notes Default Defendants’ next line of defense is to assert that there is a genuine issue of fact as to whether any default occurred. They contend that they are not in default because they instructed plaintiffs to apply toward payment on the Notes part of the amount they claim they overpaid for the purchase of the ICD stock. In substance, defendants seek to set off their unresolved claim of overpayment against the payments expressly called for by the Notes. The question of which side will retain or, indeed, recover money or property" }, { "docid": "20194419", "title": "", "text": "of Negligent Misrepresentation, December 11, 1986, at 7. Georgia applies the lex loci delicti in tort actions, see Wardell v. Richmond Screw Anchor Co., 133 Ga.App. 378, 210 S.E.2d 854 (1974), and the lex loci contractus in contract cases, see General Electric Credit Corp. v. Home Indemnity Co., 168 Ga.App. 344, 309 S.E.2d 152 (1983). Plaintiffs have not demonstrated how either of these theories justify the application of Florida law. Thus, the court concludes that it is not obligated to apply Florida law. Even if one of these theories initially pointed toward the application of Florida law, Georgia choice of law principles dictate that only the statutory law of Florida applies. See Frank Briscoe Co. v. Georgia Sprinkler Co., 713 F.2d 1500, 1503 (11th Cir.1983). Plaintiffs have not pointed the court to any statute codifying Florida’s negligent misrepresentation law. Thus, plaintiffs’ claim of negligent misrepresentation remains dismissed. Accordingly, plaintiffs’ motion for class certification is GRANTED. The certified class is composed of: All persons who purchased Polk County Industrial Development Authority First Mortgage Health Care Facilities Revenue Bonds, Series 1982 from the date they were first offered, on or about October 1, 1982, to December 1, 1983, who have sustained damages, with the exception of the named defendants, members of the immediate families of each of the individual defendants, any entity in which any of these defendants has a controlling interest, and the legal representatives, heirs, successors, affiliates or assigns of any of the defendants. The cross motions for oral argument are DENIED. Plaintiffs’ motion to strike is GRANTED. Counsel for the parties are DIRECTED to confer and submit a proposed class notice form within thirty (30) days of the filing of this order. . Numerous defendants oppose plaintiffs’ motion for class certification. Putative class member Kenneth Wong also opposes the motion for class certification. In light of the court’s February 13, 1987, order Wong lacks standing to raise objections to class certification. Thus, the court will grant plaintiffs’ motion to strike. The substance of Wong’s objections, in any event, are addressed in this order. Pursuant to settlement agreements reached with" }, { "docid": "8644958", "title": "", "text": "30-day, right-to-cure interval, the Pauls moved out of the residence, but during all relevant times they continued intermittently to enter the property and to maintain service personnel on site. After the Pauls’ default, but before the expiration of the right-to-cure period, the RTC hired security guards to patrol both- the street in front of and the waterfront behind the residence. II. The RTC filed suit against the Pauls seeking to foreclose upon their residential mort gage; the Pauls countersued for trespass, breach of contract and deprivation of due process. The RTC moved for summary judgment on the Pauls’ counterclaims. The district court orally granted that motion before the case went to trial. After a bench trial, the district court received proposed findings of fact and conclusions of law and, thereafter, entered final judgment in favor of the RTC on its foreclosure claim. The district court then memorialized by written order its prior oral disposition of the counterclaims. This appeal followed. The district court’s conclusions of law and findings of fact underlying its order of final judgment for the RTC on the foreclosure claim are subject to de novo and clear error review, respectively. See, e.g., National Shipping Co. of Saudi Arabia v. Omni Lines, Inc., 106 F.3d 1544, 1545 (11th Cir.1997). The district court’s grant of summary judgment against the Pauls on their counterclaims due to their failure to exhaust administrative remedies raises a question of subject matter jurisdiction that we examine de novo. See McMillian v. Federal Deposit Ins. Corp., 81 F.3d 1041, 1045 (11th Cir.1996). In this light, we consider the two distinct aspects of the Pauls’ appeal. A. The Pauls argue that the district court erroneously granted final judgment to the RTC on its foreclosure claim. They base this contention on the assertion that the RTC failed to satisfy the conditions precedent of the mortgage agreement as usually required for a foreclosure action under Florida law. See generally Voght v. Galloway, 291 So.2d 579, 581 (Fla.1974). Specifically, the Pauls maintain that the RTC’s agents entered the property in question prior to the end of the right-to-eure period," }, { "docid": "1026634", "title": "", "text": "presented weigh in favor of the Court’s exercise of its discretion to abstain pursuant to 28 U.S.C. § 1452(b). An appropriate Order follows. ORDER AND NOW, this 12th day of October, 2005, upon consideration of the Plaintiffs Motion to Remand the Case to Pennsylvania State Court, the Defendant’s response thereto, and after oral argument on the matter, it is hereby ORDERED that the Plaintiffs’ Motion to Remand is GRANTED. The case shall be remanded to the Court of Common Pleas of Philadelphia County. . According to Ms. Allen, the state court has already decided several key issues, including a denial of J.K. Harris's preliminary objections and \"numerous discovery motions.” Memorandum in Support of Motion to Remand at 11. Ms. Allen additionally asserts that at the time of removal, briefing on the class certification issues was complete and the class certification hearing was “just days away.” Id. . Mr. Allen is not named as a party on the class action complaint. .Section 1452 states that \"[a] party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.” 28 U.S.C. § 1452(a). In turn, Section 1334 provides that, with certain exceptions, a district court \"shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11.” 28 U.S.C. § 1334. . It appears that the parties have resolved this issue. Both counsel indicate that Ms. Allen has agreed to filed a Second Amended Complaint which would not include the unjust enrichment allegation. See Memorandum Supporting Motion for Remand at 10 n. 2; April 21 Letter from C. D'Angelo at 2. J.K. Harris interprets Ms. Allen's statement of her intent to file another amended complaint to be a request to file such a complaint in federal court, thereby consenting to federal jurisdiction. . Although the motion is titled a \"Motion to Remand,\" it is" }, { "docid": "5409648", "title": "", "text": "M & T pursuant to the Enterprise Note and the Loan Agreement, Waste Tech is subro-gated to M & T’s rights and remedies under those agreements and under the Collateral Assignment given to secure Enterprise’s obligations to M & T. In each of those documents, Enterprise consents to the jurisdiction of this Court. Accordingly, Waste Tech argues, this Court has jurisdiction over Enterprise with respect to Waste Tech’s cross-claims. The Court finds this argument persuasive. It is well-established “that parties to a contract may agree in advance to submit to the jurisdiction of a given court,” National Equipment Rental Ltd. v. Szukhent, 375 U.S. 311, 316, 84 S.Ct. 411, 414, 11 L.Ed.2d 354 (1964), and such an agreement will be enforced unless it would be unjust or unreasonable to do so. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n. 14, 105 S.Ct. 2174, 2182 n. 14, 85 L.Ed.2d 528 (1985). Waste Tech’s first and second cross-claims directly involve enforcement of the Enterprise Note, the Loan Agreement and the Collateral Assignment, each of which contains Enterprise’s consent to this Court’s jurisdiction. Despite Enterprise’s argument to the contrary, it is clear that the jurisdictional consent provisions contained in those documents would have been enforceable by M & T against Enterprise. Thus, the issue is solely whether Waste Tech, as M & T’s subrogee, can enforce those provisions against Enterprise. The answer is clearly in the affirmative. Under New York law, “[i]t is the very essence of subrogation that a subrogee stands in the shoes of the subrogor and is entitled to all of the latter’s rights, benefits and remedies.” United States Fidelity and Guaranty Co. v. E.W. Smith Co., 46 N.Y.2d 498, 504, 414 N.Y.S.2d 672, 674, 387 N.E.2d 604, 605-06 (1979) (applying statute of limitations applicable to New York residents to claim brought by foreign corporation as subrogee of New York partnership); see also Servidori v. Mahoney, 129 A.D.2d 944, 515 N.Y.S.2d 328 (3d Dep’t 1987) (the rights of a subrogee must be determined with respect to the rights of the subrogor); Solomon v. Consolidated Resistance Company of" } ]

[ { "docid": "5128855", "title": "", "text": "documents produced by Law as part of its Rule 26 disclosures. We are further asked to consider whether the district court erroneously ignored several of Mohawk’s arguments as falling outside the scope of the pretrial order. A “[A]n affidavit may not be disregarded [solely] because it conflicts with the affiant’s prior sworn statements. In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue.” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (citation omitted). We have described cases in which an affidavit raises but a sham issue as “unusual.” Id. In determining whether an affidavit creates a sham fact issue, we consider whether: “(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain.” Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir.2001) (quotation omitted). We review the district court’s decision to exclude affidavits at the summary judgment stage for abuse of discretion. Mitchael v. Intracorp, Inc., 179 F.3d 847, 854 (10th Cir.1999). “A district court abuses its discretion when it commits an error of law.” Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir.2006). We explicitly require that a district court first “determine whether the conflicting affidavit is simply an attempt to create a ‘sham fact issue’ ” before excluding it from summary judgment consideration. Durtsche v. Am. Colloid Co., 958 F.2d 1007, 1010 n. 2 (10th Cir.1992) (quoting Franks, 796 F.2d at 1237). Unlike our prior cases in which we affirmed a district court’s exclusion of affidavits for inconsistency with prior testimony, see Lantec, Inc. v. Novell, Inc., 306 F.3d 1003, 1016 (10th Cir.2002); Ralston, 275 F.3d at 973; Mitchael, 179 F.3d at 854-55; Sports Racing Servs., Inc. v. Sports Car Club of Am., Inc., 131 F.3d 874, 893 (10th Cir.1997); Rios v. Bigler, 67 F.3d 1543, 1552" } ]

[ { "docid": "14081172", "title": "", "text": "the FMLA as a limitation on the class of eligible employees, and that the authority to create an additional exception to that provision lies with Congress, not the courts. See Special Devices, Inc. v. OEA, Inc., 270 F.3d 1353, 1357 (Fed.Cir.2001) (“If [] an exception is to be created, Congress, not this court, must create it.”); United States v. Petrov, 747 F.2d 824, 826 (2d Cir.1984) (“[W]e think it is for [C]ongress, and not this court, to create exceptions to [a] statute’s clearly expressed, broad coverage.”). V. Additional Time for Discovery Ms. Hackworth alternatively requests that we reverse the district court’s decision and remand the case so that she may conduct additional discovery. Ms. Hackworth contends that the district court abused its discretion in denying her request for additional discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure because (1) additional discovery is needed to ensure that all of Progressive’s Oklahoma employees are accounted for and (2) the difference between her eligibility and non-eligibility is only three employees. Ms. Hackworth admits, however, that she failed to file an affidavit pursuant to Rule 56(f) in response to Progressive’s motion for summary judgment. In an effort to convince us that she fully complied with Rule 56(f)’s dictates, Ms. Hackworth instead relies on statements made in her response brief to Progressive’s motion for summary judgment and on an affidavit attached to her motion for reconsideration following the district court’s grant of summary judgment. We must, therefore, determine whether these actions were sufficient to satisfy Rule 56(f) and whether the district court abused its discretion in denying additional discovery. See Price ex. rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000) (holding that a district court’s decision to deny relief under Rule 56(f) is reviewed for an abuse of discretion). Rule 56(f) grants a court discretion to deny summary judgment or order a continuance when the nonmovant submits an affidavit averring that it possesses insufficient facts to oppose a summary judgment motion. Fed.R.Civ.P. 56(f). The crux of Rule 56(f) is that “summary judgment [should] be refused where the" }, { "docid": "23516538", "title": "", "text": "the affiant lacked access to material facts and the affidavit sets forth the newly-discovered evidence”). Both these rules and the exceptions thereto recognize, as the Tenth Circuit has cogently explained, “that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. As we interpret Reid and the other relevant authorities, then, a district court deciding the admissibility of a post-deposition affidavit at the summary judgment stage must first determine whether the affidavit directly contradicts the non-moving party’s prior sworn testimony. See Albertson, 749 F.2d at 228 (employing the “directly contradicts” language). A directly contradictory affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction. See A.H. Robins, 766 F.2d at 1104 (setting forth instances in which “an inconsistent affidavit may preclude summary judgment”). If, on the other hand, there is no direct contradiction, then the district court should not strike or disregard that affidavit unless the court determines that the affidavit “constitutes an attempt to create a sham fact issue.” See Franks, 796 F.2d at 1237. A useful starting point for this inquiry is the nonexhaustive list of factors articulated by the Tenth Circuit in Franks, where the court noted that the existence of a sham fact issue turns on “whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts to explain.” Id. The district court in the present ease struck portions of Cosentini’s affidavit that admittedly did not directly contradict his deposition testimony, but rather revealed information that was not fully explored during that testimony. See Aerel, 371 F.Supp.2d at 942 (recognizing that paragraphs 7 and 11 did “not represent a direct contradiction between Cosentini’s Affidavit and prior deposition testimony”). Absent a direct contradiction," }, { "docid": "14081173", "title": "", "text": "that she failed to file an affidavit pursuant to Rule 56(f) in response to Progressive’s motion for summary judgment. In an effort to convince us that she fully complied with Rule 56(f)’s dictates, Ms. Hackworth instead relies on statements made in her response brief to Progressive’s motion for summary judgment and on an affidavit attached to her motion for reconsideration following the district court’s grant of summary judgment. We must, therefore, determine whether these actions were sufficient to satisfy Rule 56(f) and whether the district court abused its discretion in denying additional discovery. See Price ex. rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir.2000) (holding that a district court’s decision to deny relief under Rule 56(f) is reviewed for an abuse of discretion). Rule 56(f) grants a court discretion to deny summary judgment or order a continuance when the nonmovant submits an affidavit averring that it possesses insufficient facts to oppose a summary judgment motion. Fed.R.Civ.P. 56(f). The crux of Rule 56(f) is that “summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmoving party, however, must expressly invoke Rule 56(f)’s protections and, in so doing, must satisfy certain requirements. Price, 232 F.3d at 783. More specifically, the nonmovant must submit an affidavit “identifying the probable facts not available and what steps have been taken to obtain these facts” and must “explain how additional time will enable him to rebut movant’s allegations of no genuine issue of fact.” Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.1992). Here, Ms. Hackworth’s statements, made in her response brief to Progressive’s motion for summary judgment, to the effect that she “has not had a chance to review Progressive’s payroll records to determine if the [employee] number represented ... is correct or incorrect,” are obviously insufficient to comply with Rule 56(f). Cf. Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th" }, { "docid": "5685716", "title": "", "text": "motions for summary judgment. We have said \"[w]e will disregard a contrary affidavit ... when it 'constitutes an attempt to create a sham fact issue.' ” Burns v. Bd. of County Comm’rs, 330 F.3d 1275, 1282 (10th Cir.2003) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). One of the factors in deciding whether a party is trying to create a \"sham” factual issue is \"whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence.” Id. (quotation omitted). \"[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. In this case, OSDH produced no evidence below as to why it denied the Doels’ their birth certificate, and so we have no occasion to compare conflicting affidavits or documents. Nonetheless, OSDH's evidence presented for the first time on appeal that it relied on another statute to deny the Doels’ their requested certificate is an \"attempt to create a sham fact issue,” Burns, 330 F.3d at 1282 (quotation omitted). OSDH presumably \"had access to the pertinent evidence at the time” of the earlier proceedings, and OSDH does not argue that its position is based on “newly discovered evidence.” Id. (quotation omitted). . Oklahoma lacks a rigorous record of legislative history documenting the impetus and rationale for the adoption amendment. However, the Oklahoma House of Representatives published a media release statement on the date of the amendment's passage stating that under the bill \"[o]ut-of-state adoptions by homosexual couples would not be recognized in Oklahoma.” See Republican Legislators Applaud Passage of Bill to Prevent State Recognition of Same-Sex Adoptions, Okla. House of Reps. Media Div., April 26, 2004, available at http://www.lsb.state.ok.us/house/news6772. html, last viewed July 31, 2007. The press release states that the legislation was designed to reverse the attorney general’s opinion that the state was \"obligated to recognize out-of-state adoptive parent/child relationships.” Id. The" }, { "docid": "23085674", "title": "", "text": "Selenke was unable to perform “either a class of jobs or a broad range of jobs in various classes as compared to the average person.” See 29 C.F.R. § 1630.2(j)(3)(i). 2. Breathing Whether Ms. Selenke presented evidence that she had a substantial impairment in the major life activity of breathing presents a much closer question. She alleged in her first amended complaint that, while employed at MIC, she suffered “physical problems such as headaches, dizziness, fatigue, breathing difficulties, burning eyes and related symptoms of sinusitus and chemical exposure as a result of the chemicals and lack of proper ventilation.” Aplts App. vol. I, at 13 (emphasis added). After giving her deposition and in response to MIC’s motion for summary judgment, Ms. Selenke submitted an affidavit describing breathing problems that she had suffered since 1995. Unlike the district court, we are not convinced that Ms. Selenke’s failure to mention these problems at her deposition precludes consideration of her affidavit. Although an affidavit that contradicts earlier sworn testimony should be disregarded if it “constitutes an attempt to create a sham fact issue,” Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986), that principle is not applicable when the deposition testimony is ambiguous and the affidavit assists in clarifying it. See id. (stating that the court should consider “whether the earlier testimony reflects confusion which the affidavit attempts to explain”); Videon Chevrolet, Inc. v. General Motors Corp., 992 F.2d 482, 487 (3d Cir.1993) (concluding that, in light of ambiguous deposition testimony, it was proper to consider' an affidavit and noting that “(t]o hold that such a semantic misstep from a witness untrained in the law effectively ends his case would only bring back the sporting theory of justice and open the door to sharp practices by counsel”); Slowiak v. Land O’Lakes, Inc., 987 F.2d 1293, 1297 (7th Cir.1993) (noting that “[a] subsequent affidavit may be used to clarify ambiguous or confusing deposition testimony”). On the issue of her breathing difficulties, Ms. Selenke’s deposition testimony is somewhat unclear. At the deposition, MIC’s attorneys asked her “what activities in your life have been affected by" }, { "docid": "20385072", "title": "", "text": "did not relate back because the retaliation claim raised new and discrete allegations that were not pled in her original complaint. Based on our review of the original and amended complaints, we agree. Her retaliation claim is based on factual allegations that were new and discrete from the facts she originally pled. See Jones v. Bernanke, 557 F.3d 670, 674-75 (D.C.Cir.2009). Indeed, Ms. Hernandez does not argue otherwise. Rather, she argues that Valley View had notice of the new claim because she had included retaliation in her EEOC charge. Defendant’s notice in her EEOC complaint that she might file a retaliation claim is unavailing because Rule 15(c)(1)(B) states that a pleading relates back only if the new claim arose “out of the conduct, transaction, or occurrence” pled in the original pleading. In Mayle, the Court held that “[t]he ‘original pleading’ to which Rule 15 refers is the complaint in an ordinary civil case.” 545 U.S. at 655, 125 S.Ct. 2562. Thus, Ms. Hernandez’s argument that her new claim relates back because it was included in her EEOC charge is without merit. IV. CONCLUSION Ms. Hernandez marshaled sufficient hostile work environment evidence to withstand summary judgment. We therefore reverse the district court’s entry of summary judgment on that issue and also on the issue of constructive discharge. We affirm dismissal of Ms. Hernandez’s retaliation claim as time-barred. . Pursuant to Fed. R.App. P. 42(b), the parties stipulated to dismiss the appeal as to defendant Morrison Management Specialists, Inc. See No. 11-1244, Order of Sept. 15, 2011. . On an appeal from summary judgment, \"we examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party,” without making credibility determinations or weighing the evidence. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir.2009) (internal quotation marks omitted). The facts are presented accordingly. . We reject Valley View's argument that the district court should have disregarded the affidavits submitted in Ms. Hernandez's response as \"sham affidavits.\" See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (stating \"courts will" }, { "docid": "23392621", "title": "", "text": "some other reason misspoke, the subsequent correcting or clarifying affidavit may be sufficient to create a material dispute of fact. The case before us, however, does not present such a situation.... Plaintiffs affidavit, submitted only after she faced almost certain defeat in summary judgment, flatly contradicted no less than eight of her prior sworn statements[.] ... [T]he objectives of summary judgment would be seriously impaired if the district court were not free to disregard the conflicting affidavit.... When, as in the present case, the affiant was carefully questioned on the issue, had access to the relevant information at that time, and provided no satisfactory explanation for the later contradiction, the courts of appeals are in agreement that the subsequent affidavit does not create a genuine issue of material fact. Id. (emphasis in original) ; see also Baer v. Chase, 392 F.3d 609, 624 (3d Cir.2004) (“[A] party may not create a material issue of fact to defeat summary judgment by filing an affidavit disputing his or her own sworn testimony without demonstrating a plausible explanation for the conflict.” (citing Hackman v. Valley Fair, 932 F.2d 239, 241 (3d Cir.1991))); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Also pertinent to our analysis in Martin was the importance of the questioning on which the plaintiff had altered her testimony and the questionable timing of the affidavit. 851 F.2d at 705. These considerations, of course, must be taken into account with all of the surrounding circumstances. See Baer, 392 F.3d at 624. Recently, in Jiminez v. All American Rathskeller, Inc., we reaffirmed the sham affidavit doctrine’s “continued vitality and importance”: A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment. A sham affidavit cannot raise a genuine issue of fact because it is merely a variance from earlier deposition testimony, and therefore no reasonable jury could rely on it to find for the nonmovant." }, { "docid": "20385073", "title": "", "text": "her EEOC charge is without merit. IV. CONCLUSION Ms. Hernandez marshaled sufficient hostile work environment evidence to withstand summary judgment. We therefore reverse the district court’s entry of summary judgment on that issue and also on the issue of constructive discharge. We affirm dismissal of Ms. Hernandez’s retaliation claim as time-barred. . Pursuant to Fed. R.App. P. 42(b), the parties stipulated to dismiss the appeal as to defendant Morrison Management Specialists, Inc. See No. 11-1244, Order of Sept. 15, 2011. . On an appeal from summary judgment, \"we examine the record and all reasonable inferences that might be drawn from it in the light most favorable to the non-moving party,” without making credibility determinations or weighing the evidence. Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1058 (10th Cir.2009) (internal quotation marks omitted). The facts are presented accordingly. . We reject Valley View's argument that the district court should have disregarded the affidavits submitted in Ms. Hernandez's response as \"sham affidavits.\" See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (stating \"courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue”). To be disregarded as a sham, an affidavit must contradict prior sworn statements. See Law Co., Inc. v. Mohawk Constr. & Supply Co., Inc., 577 F.3d 1164, 1169 (10th Cir.2009). Ms. Hernandez's affidavit does not contradict her prior deposition testimony. She did not testify, as Valley View claims, that she heard only two jokes. At her deposition, Valley View asked her to describe Mr. Lillis's racial jokes. She described the barbeque and tamale jokes and \"[sjtuff like that.” Aplt. App. at 298. Valley View's counsel then asked her to describe other jokes. She answered: \"So many. It's like — -just remembering makes me — ” at which point Valley View’s counsel interrupted her answer. Id. at 299. Ms. Hernandez's testimony reflects that she described the barbeque and tamale jokes as examples. Her affidavit and Ms. Nunez's provided additional examples that did not contradict her testimony. . Valley View asserts that Ms. Hernandez only established “three incidents with" }, { "docid": "22055101", "title": "", "text": "could not remember anything else that had been said. When the question was repeated Ms. Batchelor answered, “No.” The district court properly refused to deny summary judgment on the basis of the affidavit. A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony. Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984). Even in response to a leading question in her deposition Ms. Batchelor replied that no promise was made at the interview to the effect that she didn’t have to worry about being laid off. If such a statement had been made she was required to bring it out at the deposition and could not contradict her deposition testimony in a subsequent affidavit. In Biechele v. Cedar Point, Inc., 747 F.2d at 215, we quoted from Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969): If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. The issue concerning the Sears handbook raised by the affidavit will be treated in connection with similar claims by the other two plaintiffs. IV. A. We conclude that summary judgment was proper in all three cases. A contract to discharge only for cause may not be based on “a mere subjective expectancy.” Schwartz v. Michigan Sugar Co., 106 Mich.App. 471, 478, 308 N.W.2d 459 (1981), appeal denied, 414 Mich. 870 (1982). The plaintiffs maintain that they had more than a subjective expectancy of continued employment; that the “Employe Rules” created an implied contract to discharge only for cause. The plaintiffs argue that by listing conduct that “may result in the termination of your employment” in the handbook Sears limited its right to discharge employees and that a discharge for any other reason would not be for good cause. They rely principally on Schipani v." }, { "docid": "2050038", "title": "", "text": "credibility, and urge the court to discount plaintiffs affidavit in support of her summary judgment motion because it conflicts with her deposition testimony given earlier. The court is well aware that in assessing a conflict under these circumstances, the court should disregard a contrary affidavit only if it constitutes an attempt to create a sham fact issue. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir.1996). The rationale underlying such decisions is that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony. Franks, 796 F.2d at 1237. The court finds it unnecessary to examine the factors established in Franks. Plaintiffs affidavit does not contradict her earlier deposition testimony, but rather supplements it by adding details that are consistent with her earlier version of events, and about which she was not specifically questioned at the time. Under these circumstances, no conflict of the Franks variety exists, and the court is not convinced that plaintiffs affidavit should be disregarded in considering the propriety of summary judgment. Defendants are, of course, free to question plaintiff about and to compare the two sworn statements at trial, in an attempt to persuade the jury that one should be given more credence than another, but the court’s ruling on the issue of sexual harassment in this motion would be the same even if the plaintiffs affidavit were totally discounted. Metro-Plex had no written policy against sexual harassment while Land worked there. (Dk. 122, Illig depo., p. 117-119). The evidence and reasonable inferences viewed in favor of plaintiff show that Egly engaged in the following conduct while in plaintiffs presence: told an employee that plaintiff and he, who were leaving on business together, were going to party the rest of the day; (Dk. 133, Land depo., p. 82-83); stood with his hands on his genitals while wiggling his torso (Id., p. 296); looked up and down plaintiffs" }, { "docid": "5685715", "title": "", "text": "allegations. . The statute cited by OSDH as the basis for denying E. D.'s birth certificate governs the initial birth certificate issued \"within seven (7) days after the birth\" for \"each live birth which occurs in this state.” Okla. Stat. tit. 63, § 1 — 311(A). Thus, it appears to be wholly inapplicable to the supplementary birth certificates that must be issued to adoptive parents under Okla. Stat. tit. 10, § 7505-6.6(B) and Okla. Stat. tit. 63, § 1-316(A). Even if Section 1-311 could be deemed to apply to adoptive parents, it requires that the father’s name be listed on the birth certificate only \"[i]f the mother was married at the time of conception and birth.” Okla. Stat. tit. 63, § 1-311(D)(1). Nothing in the record indicates that either of the Doel mothers were \"married at the time of conception and birth,” and so it is unclear why the Department would have applied this statute to Jennifer Doel's request for a new birth certificate for E. . This conclusion is consistent with our review of motions for summary judgment. We have said \"[w]e will disregard a contrary affidavit ... when it 'constitutes an attempt to create a sham fact issue.' ” Burns v. Bd. of County Comm’rs, 330 F.3d 1275, 1282 (10th Cir.2003) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). One of the factors in deciding whether a party is trying to create a \"sham” factual issue is \"whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence.” Id. (quotation omitted). \"[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. In this case, OSDH produced no evidence below as to why it denied the Doels’ their birth certificate, and so we have no occasion to compare conflicting affidavits or documents. Nonetheless, OSDH's evidence presented for the first time" }, { "docid": "8959354", "title": "", "text": "Defendant Martinez’s version of events. Based on these affidavits, reasonable jurors could find Defendant Martinez’s actions unreasonable. Defendants argue in effect that I should disregard Dr. Richie’s affidavit because it is a sham. As support, Defendants cite apparent inconsistencies between Dr. Richie’s affidavit, and both a written report he authored on November 7, 1995 (1995 Report), and his deposition testimony. The Tenth Circuit permits an affidavit that conflicts with earlier sworn testimony be disregarded when it constitutes an attempt to create a sham fact issue. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). In Franks, the Tenth Circuit held that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his or her own prior testimony. Id. Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. See id. I cannot conclude that Dr. Richie’s affidavit is a sham created for the purpose of avoiding summary judgment. In his deposition, Dr. Richie stated both that he did not disagree with the findings of the individual who performed the autopsy of Preston Hill, Dr. Deter, see Defendants’ Motion for Summary Judgment, Ex. E at 78, and that he could not render an opinion regarding exactly how Preston Hill was killed. Id. at 62. Because the autopsy report did not draw any conclusion regarding the events that led to Preston Hill’s death, see Plaintiffs’ Response, Ex. 8, Dr. Richie’s affidavit does not directly conflict with his deposition testimony. In addition, Dr. Richie’s 1995 Report is not sworn testimony and, thus, cannot be considered in a sham affidavit inquiry. See Franks, 796 F.2d at 1237. Even if I could consider the 1995 Report, I would not find Dr. Richie’s testimony a sham. In that report, Dr. Richie stated: Th[e] direction [of the bullet path after" }, { "docid": "22962428", "title": "", "text": "direct contradiction, then, the court must not disregard the affidavit, unless the court determines that the affidavit “constitutes an attempt to create a sham fact issue.” Aerel, 448 F.3d at 908 (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). One of the factors to consider in determining whether the affidavit tries to create a sham fact issue is whether the affiant was cross-examined during earlier testimony. Aerel, 448 F.3d at 909. This factor matters, because a party who is cross-examined but nevertheless offers unequivocal testimony, only to be contradicted by a later affidavit, has indeed tried to create a sham fact issue. See generally Franks, 796 F.2d at 1237 (citing Camfield Tires, Inc., v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983) for factors to consider whether sham fact issue exists). That is not the case here, because “the alleged inconsistency created by the affidavit existed within the deposition itself.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980). The district court should not have disregarded the affidavit. d. Summary Judgment Yet this portion of paragraph 9 of the affidavit is not essential for the Rule 56 analysis: a genuine issue of material fact had already been “raised by the deposition even without consideration of the affidavit.” Kennett-Murray, 622 F.2d at 894. The remaining portion of paragraph 9 and a portion of paragraph 7 remain to be considered. O’Brien claims in paragraph 9 that she “was required to report to work at 4:30 a.m. during the week, and 5:30 a.m. on Sundays.” This apparently conflicts with O’Brien’s deposition testimony, discussed above, that Donnelly “never instructed [her] to come in an hour and a half before the restaurant opened” — nor did Nancy, her manager. To avoid a conflict with this deposition that would call for the affidavit to be stricken as an attempt to create a sham dispute of fact, this portion of the affidavit should be read in a limited manner — ie., that O’Brien “was required” to report to work at those earlier times, but not that Ed Donnelly or Nancy (O’Brien’s manager) required" }, { "docid": "23516536", "title": "", "text": "contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (collecting cases). These rules invariably reflect the importance of distinguishing legitimate efforts to supplement the summary judgment record from attempts to create a sham issue of material fact. The Fifth Circuit, for example, has held that a nonmoving party “cannot defeat a motion for summary judgment by submitting an affidavit [that] directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir.1984). That court does not, however, permit a district court to strike or “disregard a party’s affidavit merely because it conflicts to some degree with an eaidier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94 (5th Cir.1980) (holding that the district court erred in refusing to consider an affidavit that was “not inherently inconsistent” with the party’s deposition testimony) (emphasis added). Rather, the post-deposition affidavit should be considered unless “the issue raised by the contradictory affidavit constituted a sham.” Id. at 894; see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996) (distinguishing Bone as a case in which the later affidavit “simply supplemented] the previous sworn deposition”). Other circuits likewise permit district courts to consider post-deposition affidavits that appear to contradict prior deposition testimony so long as the affidavit is not intended to create a sham issue of fact — that is, if the nonmoving party was confused during the deposition or has some other legitimate justification. See, e.g., Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (holding that a contradictory affidavit should be disregarded when it attempts to create a sham fact issue, and listing factors to be used in determining whether the affidavit creates such an issue); Miller v. A.H. Robins, Co., 766 F.2d 1102, 1104 (7th Cir.1985) (holding that “an inconsistent affidavit may preclude summary judgment ... if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony or if" }, { "docid": "19255744", "title": "", "text": "might have happened several years earlier; 63. If Xerox had only restricted its handful of “patented” parts, we could have worked around this. Declaration of William Dixon ¶¶ 62-63, attached as Exhibit 9 to Consolidated Appendix-Volume I (Doc. # 775). Xerox argues that Dixon’s declaration should be stricken because it directly conflicts with a prior interrogatory answer by CCS. The Court will disregard declarations which are inconsistent with prior sworn testimony if the changes attempt to create a sham fact issue. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986). “[T]he utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Id. Prior discovery responses made under oath essentially are prior sworn testimony and should be analyzed in the same manner as prior deposition testimony. See, e.g., Donohoe v. Consolidated Operating & Prod. Corp., 982 F.2d 1130, 1136 n. 4 (7th Cir.1992); Reisner v. General Motors Corp., 671 F.2d 91, 93 (2d Cir.1982). To determine if a declaration is an attempt to create a sham issue of fact, the Court must consider “whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.” Franks, 796 F.2d at 1237. The Court finds that the declaration does not directly contradict the prior interrogatory answer by CCS and that it therefore should not be stricken under Franks v. Nimmo. Even though the declaration will not be stricken, it is insufficient to avoid summary judgment by creating a genuine issue of material fact whether CCS could have survived without access to patented parts and that its damages arose from the refusal to sell un patented parts. At best the Dixon declaration reflects speculation that if Xerox had limited its parts restriction to patented parts and if Xerox had shipped all" }, { "docid": "23516537", "title": "", "text": "raised by the contradictory affidavit constituted a sham.” Id. at 894; see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir.1996) (distinguishing Bone as a case in which the later affidavit “simply supplemented] the previous sworn deposition”). Other circuits likewise permit district courts to consider post-deposition affidavits that appear to contradict prior deposition testimony so long as the affidavit is not intended to create a sham issue of fact — that is, if the nonmoving party was confused during the deposition or has some other legitimate justification. See, e.g., Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986) (holding that a contradictory affidavit should be disregarded when it attempts to create a sham fact issue, and listing factors to be used in determining whether the affidavit creates such an issue); Miller v. A.H. Robins, Co., 766 F.2d 1102, 1104 (7th Cir.1985) (holding that “an inconsistent affidavit may preclude summary judgment ... if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony or if the affiant lacked access to material facts and the affidavit sets forth the newly-discovered evidence”). Both these rules and the exceptions thereto recognize, as the Tenth Circuit has cogently explained, “that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. As we interpret Reid and the other relevant authorities, then, a district court deciding the admissibility of a post-deposition affidavit at the summary judgment stage must first determine whether the affidavit directly contradicts the non-moving party’s prior sworn testimony. See Albertson, 749 F.2d at 228 (employing the “directly contradicts” language). A directly contradictory affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction. See A.H. Robins, 766 F.2d at 1104 (setting forth instances in which “an inconsistent affidavit may preclude summary judgment”). If, on the other hand, there is no direct contradiction, then the district" }, { "docid": "8959353", "title": "", "text": "2, at 2,1 cannot conclude that no reasonable juror could find that Defendant Martinez’s decision to arrest Preston Hill with his gun drawn was unreasonable. Summary judgment is thus inappropriate on that question, iii. Finally, I address whether summary judgment is appropriate on the question whether the rest of the seizure was reasonable. I conclude that the affidavits by Dr. Richie and Mr. Paradis create a genuine issue of material fact regarding the reasonableness of Defendant Martinez’s actions after he “grabbed Preston Hill’s left shoulder with his left hand.” Mr. Paradis’ assertion that “the firing of the gun was an affirmative act by Defendant Martinez,” Plaintiffs’ Response, Ex. 3, at 2, and Dr. Richie’s claim that “it would be impossible for the gun to have caused the pattern injury that is manifested in this case from the gun hitting Preston Hill’s back,” and “[i]t is likely that Preston Hill was shot in a prone position with the Defendant Martinez’s gun very close to Mr. Hill’s body,” Plaintiffs’ Response, Ex. 10, at 2, differ significantly from Defendant Martinez’s version of events. Based on these affidavits, reasonable jurors could find Defendant Martinez’s actions unreasonable. Defendants argue in effect that I should disregard Dr. Richie’s affidavit because it is a sham. As support, Defendants cite apparent inconsistencies between Dr. Richie’s affidavit, and both a written report he authored on November 7, 1995 (1995 Report), and his deposition testimony. The Tenth Circuit permits an affidavit that conflicts with earlier sworn testimony be disregarded when it constitutes an attempt to create a sham fact issue. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986). In Franks, the Tenth Circuit held that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his or her own prior testimony. Id. Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affidavit was based on newly discovered evidence, and whether the" }, { "docid": "20295207", "title": "", "text": "of fact and thereby defeat summary judgment by the simple expedient of filing an affidavit that contradicts previous sworn testimony. “Courts have long held that a party may not create a material issue of fact simply by contradicting [her] prior sworn testimony____ ‘[T]he objectives of summary judgment would be seriously impaired if the district court were not free to disregard [the later statement].’ ”' Pyramid Securities Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C.Cir.1991) (quoting Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir.1988)); see Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 315 (6th Cir.1989). “If a party who has been examined at length in deposition could raise an issue of fact simply by submitting an affidavit contradicting [her] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.” Perma Research and Development Co. v. Singer Co. 410 F.2d 572, 578 (2d Cir.1969). “[A] party’s affidavit which contradicts [her] own prior deposition testimony should be disregarded on a motion for summary judgment.” Mack v. United States, 814 F.2d 120, 124 (2d Cir.1987); see Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Kalekiristos v. CTF Hotel Management Corp., 958 F.Supp. 641, 669 (D.D.C. 1997). Plaintiff was deposed by counsel for all defendants, and plaintiffs counsel had more than one chance to correct any confusion plaintiff may have suffered. Although plaintiffs counsel had every opportunity to clarify plaintiffs testimony regarding FDA approval both during the deposition and within thirty days thereafter, see Rule 30(e), Fed.R.Civ.P., he made no attempt to do so. Furthermore, despite plaintiffs allegations to the contrary, her affidavit does not “clarify” confusing testimony; her deposition testimony with regard to this particular point, although damaging to her case, was quite clear: she would have gone ahead with the surgery even if she had known the pedicle screws had not been approved by the FDA. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create" }, { "docid": "2050037", "title": "", "text": "the deponents were still the substantial equivalent of a Rule 56(c) affidavit. In In re Sunset Bay Associates, 944 F.2d 1503, 1510 (9th Cir.1991), it was held that a witness’s sworn statement given in a question and answer format, without crossexamination or the witness’s signature was still admissible under Rule 56(c). “Because there is no reason to believe that the sworn answers to questions are less reliable than an affidavit, to the extent that the content of the deposition testimony is otherwise admissible, that testimony should be admissible on summary judgment.” Id. at 1510. Duffee, 160 F.R.D. at 604. The statements complained of here are written witness statements given under oath, administered by a registered merit reporter or court reporter, and transcribed by the same. (See Dk. 133, statements of Glauberman, Cox, Covitz and Kelly). For the reasons set forth in Duffee, the court finds those statements to be competent evidence and will consider them to the same extent as if they were affidavits. The bulk of defendants’ responses to the alleged facts challenge plaintiffs credibility, and urge the court to discount plaintiffs affidavit in support of her summary judgment motion because it conflicts with her deposition testimony given earlier. The court is well aware that in assessing a conflict under these circumstances, the court should disregard a contrary affidavit only if it constitutes an attempt to create a sham fact issue. Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986); Bohn v. Park City Group, Inc., 94 F.3d 1457, 1463 (10th Cir.1996). The rationale underlying such decisions is that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony. Franks, 796 F.2d at 1237. The court finds it unnecessary to examine the factors established in Franks. Plaintiffs affidavit does not contradict her earlier deposition testimony, but rather supplements it by adding details that are consistent with her earlier version of events, and about which she was not specifically questioned at the time." }, { "docid": "22962427", "title": "", "text": "performing other tasks only unambiguously contradicts the last sentence of paragraph 9 of the affidavit — that O’Brien followed Donnelly’s instruction not to clock in until a certain time. But as discussed above, other testimony suggests that, consistent with the affidavit, Donnelly also instructed O’Brien to not clock in until a certain time. O’Brien never testified at her deposition that Donnelly instructed her to clock in when she arrived. Indeed, she testified at her deposition that Donnelly did not want her clocking in until closer to 5:00 and only wanted to pay her for an hour. In short, the deposition testimony in O’Brien and Rogan did not speak with one voice. In Aerel, S.R.L. v. PCC Airfoils, L.L.C., 448 F.3d 899, 908 (6th Cir.2006), we explained that when deciding the admissibility of a post-deposition affidavit at the summary-judgment stage, the district court must first determine whether the affidavit “directly contradicts” prior sworn testimony. The internal inconsistencies in O’Brien’s testimony mean that the affidavit did not directly contradict the prior deposition testimony. Because there is no direct contradiction, then, the court must not disregard the affidavit, unless the court determines that the affidavit “constitutes an attempt to create a sham fact issue.” Aerel, 448 F.3d at 908 (citing Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.1986)). One of the factors to consider in determining whether the affidavit tries to create a sham fact issue is whether the affiant was cross-examined during earlier testimony. Aerel, 448 F.3d at 909. This factor matters, because a party who is cross-examined but nevertheless offers unequivocal testimony, only to be contradicted by a later affidavit, has indeed tried to create a sham fact issue. See generally Franks, 796 F.2d at 1237 (citing Camfield Tires, Inc., v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1983) for factors to consider whether sham fact issue exists). That is not the case here, because “the alleged inconsistency created by the affidavit existed within the deposition itself.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980). The district court should not have disregarded the affidavit. d. Summary Judgment" } ]

[ { "docid": "5777722", "title": "", "text": "PHILLIPS, Circuit Judge: Six corporate and three individual defendants appeal their felony convictions for conspiracy to fix real estate commissions in Montgomery County, Maryland in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. Finding no error, we affirm. During the critical period in question all the defendants were realtors engaged as competitors in the business of “reselling” houses. When a person desired to sell his house in Montgomery County he listed it with a realtor, provided he did not decide to attempt to sell it directly. The listing provided that when the house was sold a fixed percentage of the sales price would be paid as a commission to the realtor. This commission was divided among the firms involved in the sale, a portion going to the firm that obtained the listing, another portion to the firm that produced the buyer. To facilitate the operation of this shared commission arrangement, each of the defendants belonged to the Montgomery County Board of Realtors, a trade association that operated a multiple listing service. In the case of almost all houses listed with a member realtor, the member sent a card to the listing service containing a picture of the house and certain pertinent information, including the commission. Thus all member realtors had available a fairly comprehensive list of houses oh the market in the county. During the summer of 1974, and for some time before, the prevailing commission rate in Montgomery County was six percent of the sales price. A few houses were listed at seven percent, but additional services were apparently provided for the higher rate. At this time the real estate brokerage business in the county was in difficult straits. While the number of houses listed with brokers for resale had continued to rise as it had for several previous years, the number of sales had fallen, mortgage funds were in short supply and increasing costs of stationery, telephone service, advertising and gasoline had reduced the profit margin. On September 5, 1974, defendant John Foley, the president of defendant Jack Foley Realty, Inc., hosted a dinner" } ]

[ { "docid": "21809042", "title": "", "text": "Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 835 (7th Cir. Ill. Oct. 11, 1978) (citing Coniglio and Driskill for the proposition that when the seller has a complete monopoly in both the tied and tying markets, there can “be no foreclosure of competitive access to the tied market resulting from the tie-in”). In these cases, it is not merely that potential sellers of the tied product were uninterested in selling the tied product due to any number of market realities, but that those potential sellers were incapable of selling the tied product because some other seller already possessed a lawfully obtained monopoly in that market. If the seller has a natural' monopoly in both the tying and tied product markets, a tying arrangement cannot harm competition in the tied product market, so there can be no illegal tie. Similarly, when the tied product is completely unwanted by the buyer such that no market exists for that product, there can be no per se illegal tying arrangement. See, e.g., Blough v. Holland Realty, Inc., 574 F.3d 1084, 1089 (9th Cir. 2009) (“Zero foreclosure exists where the tied product is completely unwanted by the buyer.”); Reifert v. S. Cent. Wisconsin MLS Corp., 450 F.3d 312, 323 (7th Cir. 2006) (“Despite Reifert’s desire to avoid purchasing a Realtors Association membership, without evidence of competitors in the market for services offered by the Realtors Association, there can be no foreclosure of competition.”); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 815 (1st Cir. 1988) (“Wells has failed to demonstrate the slightest market for membership in real estate boards that might have been affected by the defendants’ alleged tying arrangement.”); id. at 815 n.ll (“Wells’ real error here was in failing to show that there was a ‘market’ at all for real estate board membership.”). These cases dealt with purported ties between a real estate listing service and membership in a realtors’ association, Reifert, 450 F.3d at 323; Wells Real Estate, 850 F.2d at 805, or between sale of undeveloped lots and realtor’s commission for the sale" }, { "docid": "15490705", "title": "", "text": "not fall within the flow of interstate commerce. Marston v. Ann Arbor Property Mgt. Ass’n, 302 F.Supp. 1276, 1279-80 (E.D.Mich.1969), aff’d, 422 F.2d 836 (6th Cir. 1970); Cotillion Club, Inc. v. Detroit Real Estate Bd., 303 F.Supp. 850 (E.D.Mich.1964). Moreover, a Supreme Court decision considering real estate activities in Washington, D. C. noted, “(t)he fact that no interstate commerce is involved is not a barrier to this suit.” United States v. National Ass’n of Real Estate Bds., 339 U.S. 485, 488, 70 S.Ct. 711, 714, 94 L.Ed. 1007 (1950). Within our circuit is the view that this dictum supports concluding that real estate brokers do not operate within the flow of commerce. Hill v. Art Rice Realty Co., 66 F.R.D. 449, 454 (N.D. Ala.1974), aff’d, 511 F.2d 1400 (5th Cir. 1975). In denying jurisdiction under the “in commerce” test, we emphasize the limited scope of our holding. Here we are not considering pleadings that allege price fixing in appreciable sales of realty to out-of-state buyers. That might be a different matter. Instead, this complaint asserts only that some individuals victimized by the defendants are persons moving in and out of the New Orleans area, “[t]he cases uniformly hold that the mere movement of individuals from one state to another in order to utilize particular services does not transfer those services into interstate services within the meaning of the Sherman Act.” (cites omitted). Diversified Brokerage Services, Inc. v. Greater Des Moines Bd. of Realtors, 521 F.2d 1343, 1346 (8th Cir. 1975). The more compelling jurisdictional argument advanced by the appellants is their contention that the controverted brokerage activities substantially affect interstate commerce. This question has spawned a significant conflict of authority. Cases finding an interstate commerce nexus include United States v. Atlanta Real Estate Bd. 1972 Trade Reg.Rep. ¶ 73, 825 (N.D.Ga.1971); Knowles v. Tuscaloosa Bd. of Relators, No. 75-P-591 (N.D.Ala.) (unreported); Wiles v. Tampa Bd. of Realty, Inc., No. 74-136 Cir. T-K (M.D.Fla.) (unreported); United States v. Jack Foley Realty, Inc., (1977) Trade Reg.Rep. (D.Md.1977); Gateway Assoc. Inc. v. Essex-Costello, Inc., 380 F.Supp. 1089, 1094 (N.D.Ill.1974); Mazur v. Behrens, (1974-1)" }, { "docid": "875976", "title": "", "text": "Chicago & Suburban Refuse Disposal, 484 F.2d 751, 758 (7th Cir.), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974). In United States v. Atlanta Real Estate Board, 1972 Trade Cases Par. 73,-825 (N.D.Ga.1971) the Court held that interstate commerce in the Atlanta, Georgia real estate business was sufficiently affected to confer federal jurisdiction of a government price-fixing suit under the following circumstances: (1) members of the defendant realtor’s association often solicited the business of out-of-state persons; (2) in making such contacts, the realtors caused documents to move between Georgia and other states; (3) people moving to Atlanta from out-of-state utilized the members’ services; and (4) the member realtors often assisted purchasers in securing financing, insurance and provided other services necessary to real estate transactions in Atlanta, by virtue of which, substantial amounts of those services moved into Atlanta from out-of-state. In the present case, plaintiffs allege similar involvement of interstate commerce and more. Therefore, it must be concluded that the- interstate commerce in the Crystal Lake real estate business is sufficiently affected so as to constitutionally justify the exercise of federal jurisdiction in this case. See also United States v. Metro MLS, Inc., No. 210-73-N (E.D.Va. 9-19-73) (unreported decision). Notwithstanding the Atlanta Real Estate Board ease, the question presented here is a close one, for two other district courts have reached a contrary conclusion under facts similar to those here. In Marston v. Ann Arbor Property Managers Association, 302 F.Supp 1276 (E.D.Mich.1969), aff’d 422 F.2d 836 (6th Cir. 1970), cert. denied, 399 U.S. 929, 90 S.Ct. 2244, 26 L.Ed.2d 796, university students brought a class action under the Sherman Act to restrain the defendants from fixing apartment rental rates and controlling the supply of new apartments in the market. The Court dismissed the suit for lack of subject-matter jurisdiction because the facts that out-of-state students rented the apartments and materials from interstate commerce were used to construct apartment buildings in the relevant market were not sufficient allegations to establish that defendants had a direct and substantial effect on interstate commerce. In Cotillion Club, Inc. v. Detroit" }, { "docid": "21808991", "title": "", "text": "he couldn’t show any anticompetitive effects in the tied-product market. Id. at 1291-92. Because the Buffalo Bills necessarily had a monopoly over regular-season games as well as exhibition games, “there were neither actual nor potential competitors to the Bills in the professional football market.” Id. at 1291 (footnote omitted). Thus, noting that the plaintiff had completely failed “to demonstrate any adverse effect on competition, actual or potential,” the court affirmed the district court’s grant of summary judgment to Highwood Services (the owner and operator of the Buffalo Bills). Id. at 1293. Other circuits have since taken up this mantle—some have done so explicitly and others implicitly. See Areeda & Hoven-kamp, supra, ¶ 1722a (listing circuits requiring' anticompetitive effects to succeed on tying claims). The Fifth Circuit explicitly required Coniglio’s anticompetitive effects in Driskill v. Dallas Cowboys Football Club, Inc., 498 F.2d 321, 323 (5th Cir. 1974), in which a Dallas Cowboys fan brought the exact same claim as the plaintiff in Coniglio. The Eleventh Circuit then cited Driskill in granting summary judgment to a condominium vendor that required condominium buyers to lease individual interest in common areas. Commodore Plaza at Century 21 Condo. Ass’n v. Saul J. Morgan Enters., Inc., 746 F.2d 671, 672 (11th Cir.), cert. denied, 467 U.S. 1241, 104 S.Ct. 3512, 82 L.Ed.2d 820 (1984). The court stated, “In this case, as in Driskill, the plaintiffs failed to make any showing of coercion or anticompeti-tive effects.” Id. Building on this growing trend, the First Circuit has stated that tying claims “must fail absent any proof of anti-competitive effects in the market for the tied product.” Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 815 (1st Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). The court moderated this holding, stating that plaintiffs need not prove “the actual scope of anti-competitive effects in the market,” but ultimately adopted Jefferson Parish’s reasoning in stating that “as a matter of practical inferential common sense,” the plaintiff had to “make some minimal showing of real or potential foreclosed commerce caused by the" }, { "docid": "410431", "title": "", "text": "allege unlawful conduct which in fact substantially affected interstate commerce. . Nothing in the Wolf opinion indicates whether plaintiff Wolf specifically alleged an effect on interstate commerce arising from interstate travel by his patients. The opinion, however, likened Wolf’s case to two cases that viewed such an effect as merely incidental. To the extent Wolf can be read as rejecting, as a matter of law, the possibility that an interstate flow of people seeking a purely local service can have a substantial effect on interstate commerce, see, e. g., McLain v. Real Estate Bd. of New Orleans, Inc., 583 F.2d 1315, 1320 n. 4 (5th Cir. 1978), rev’d, 444 U.S. 232, 245, 100 S.Ct. 502, 510, 62 L.Ed.2d 441 (1980), it is no longer good law in light of McLain. The Supreme Court permitted the McLain buyers and sellers on remand “to establish that, apart from the commerce in title insurance and real estate financing, an appreciable amount of interstate commerce is involved with the local residential real estate market arising out of the interstate movement of people, or otherwise.” 444 U.S. at 245, 100 S.Ct. at 510. . In its holding, the panel here relied on two other such illustrations in line with Wolf: Income Realty & Mortgage, Inc. v. Denver Bd. of Realtors, 578 F.2d 1326 (10th Cir. 1978), and Bryan v. Stillwater Bd. of Realtors, 578 F.2d 1319 (10th Cir. 1977). We affirmed dismissal of the Sherman Act complaint in each case for failure to properly state the Act’s interstate commerce element. In Income Realty, the complaint essentially alleged a local publicity campaign to ruin the reputation of the plaintiff as a real estate broker. No facts were alleged to “show any interstate involvement in the transactions of any of the parties to the litigation.” Income Realty, 578 F.2d at 1328. Thus, we upheld dismissal because the complaint failed to properly identify any relevant channel of interstate commerce affected. In Bryan, the complaint alleged that the plaintiff real estate broker had been “unjustifiably” denied membership in the local board of realtors. Members of the board, the complaint" }, { "docid": "23341477", "title": "", "text": "matter of law, the district court properly granted summary judgment for Appellees on the Law 75 claim. C. Antitrust Claim — Tying Arrangement Asserting a per se violation of Section One of the Sherman Act, Borschow contends that Becton Dickinson threatened to withhold sale of its patented Deseret line of medical products (the tying product) unless Borschow dropped the Monoject product and carried instead its own syringe line (the tied product). Contending that this is “the case of the tie that didn’t bind,” Becton Dickinson argues that a threat alone is insufficient to constitute an illegal tying arrangement. We agree. “Section 1 of the Sherman Act prohibits a seller from ‘tying1 the sale of one product to the purchase of a second product if the seller thereby avoids competition on the merits of the ‘tied’ product. See 15 U.S.C. § 1 (‘Every contract ... in restraint of trade or commerce ... is declared to be illegal.’)” Data General Corp. v. Grumman Systems Support Corp., 36 F.3d 1147, 1178 (1st Cir.1994). “There are essentially four elements to a per se tying claim: (1) the tying and the tied products are actually two distinct products; (2) there is an agreement or condition, express or implied, that establishes a tie; (3) the entity accused of tying has sufficient economic power in the market for the tying product to distort consumers’ choices with respect to the tied product; and (4) the tie forecloses a substantial amount of commerce in the market for the tied product.” Id. at 1178-79. The fatal flaw in Borsehow’s tying claim is that Becton Dickinson never withheld its Deseret line. Although Borschow has adduced evidence of various threats by Becton Dickinson, it is undisputed that these threats were not carried out. Permitted to carry both the Deseret line and the Monoject line, Borschow was never injured by the threat. See Wells Real Estate, Inc. v. Greater Lowell Board of Realtors, 850 F.2d 803, 814 (1st Cir.) (holding that plaintiff must have been injured by anticompetitive act to have standing under antitrust laws), cert, denied, 488 U.S. 955, 109 S.Ct. 392," }, { "docid": "16453820", "title": "", "text": "agreements which form the basis for this service, see Rules and Regulations of Realty Multi-List, Inc., R.686-692a, RML members have obligated themselves to attempt to obtain from sellers “exclusive” rather than “open” listings of real estate and to pool their exclusive listings through RML. RML itself is the hub of the multiple listing service; it acts as the “central processing and distributing point” for its members’ listings. R.686. RML compiles the listings it receives from its members into a listing book, containing not only the listing data submitted by members, but often photographs of the property as well, and distributes copies to RML members. RML distributes a completely updated listing book each month and provides members with a daily update on new listings and new data on old listings. Using the information provided by RML, member brokers are able to cooperate in bringing together buyers and sellers. A broker may show a prospective purchaser all the properties contained in the RML listing book, identify those properties which meet the purchaser’s needs and desires, and show those properties to the purchaser. If the selling broker succeeds in his efforts, he brings the purchaser, the listing broker and the seller together to consummate the transaction. R.690-691. The selling broker and the listing broker then determine, by their own agreement, how the commission on the sale shall be divided. Id.; R.686a. In essence, a multiple listing service like RML functions as a trade exchange for the purchase and sale of real estate, an analogy that has not gone unnoticed in the cases and literature dealing with these institutions. See, e. g., Grillo v. Board of Realtors, 91 N.J.Super. 202, 219 A.2d 635, 644 (Ch. Div.1966); Austin, Real Estate Boards and Multiple Listing Systems as Restraints of Trade, 70 Colum.L.Rev. 1325, 1353-1359 (1970). The benefits offered by a multiple listing service are manifest: Use of the multiple has had significant impact on the real estate industry as a whole. This impact is manifested in the reduction of the obstacles brokers must face in adjusting supply to demand: market imperfections are overcome in that information" }, { "docid": "16453821", "title": "", "text": "those properties to the purchaser. If the selling broker succeeds in his efforts, he brings the purchaser, the listing broker and the seller together to consummate the transaction. R.690-691. The selling broker and the listing broker then determine, by their own agreement, how the commission on the sale shall be divided. Id.; R.686a. In essence, a multiple listing service like RML functions as a trade exchange for the purchase and sale of real estate, an analogy that has not gone unnoticed in the cases and literature dealing with these institutions. See, e. g., Grillo v. Board of Realtors, 91 N.J.Super. 202, 219 A.2d 635, 644 (Ch. Div.1966); Austin, Real Estate Boards and Multiple Listing Systems as Restraints of Trade, 70 Colum.L.Rev. 1325, 1353-1359 (1970). The benefits offered by a multiple listing service are manifest: Use of the multiple has had significant impact on the real estate industry as a whole. This impact is manifested in the reduction of the obstacles brokers must face in adjusting supply to demand: market imperfections are overcome in that information and communication barriers are reduced, along with the easing of the built-in geographical barrier confronting the buyer-seller relationship. Moreover, a realistic price structure is engendered. In effect, real estate becomes by virtue of the multiple “a more liquid commodity.” The use of the multiples has, in addition, had a significant positive impact on the individual sales transaction. The transactional benefits are fairly evenly distributed among the broker, the buyer, and the seller. In the absence of the multiple, a seller has three alternatives: first, he can sell the property himself, a course of action requiring facilities and expertise which most home owners do not possess; second, he can use an open listing; third, he can give a broker the exclusive right to sell. The multiple allows him to combine the advantages of the last two alternatives and to avoid the dangers of the first. The buyer benefits from the wider selection of purchase opportunities than would be available from the office of a single broker. In addition, there is a time-saving factor: “The buyer often" }, { "docid": "17148886", "title": "", "text": "a multiple listing service is operated primarily for the benefit of individual realtors or for the benefit of real estate business generally is not without difficulty, since the interests of both and of the public as well are served by a system which facilitates the exchange of real property. Indeed, Eevenue Euling 59-234 is based upon the assumption that the purposes of a multiple listing service are: “ (a) to assist members of the board in rendering better service to the public by creating a broader and more active market for real estate; (b) to stimulate and facilitate the transaction of business between members of the board through cooperation and exchange of exclusive listings; (c) to provide a medium through which real estate may be merchandised more efficiently and expeditiously to the advantage of both buyer and seller; and (d) to encourage realtors to uphold high standards of business practice and to further educate them in adhering to the principles of the Eealtors’ Code of Ethics.” And a publication of the National Association of Eeal Estate Boards states simply that a multiple listing system is “a medium through which real estate may be merchandized efficiently and expeditiously to the advantage of the buyer and the seller and which will produce a greater profit to the Realtor.” Moss, Multiple Listing Practice and Procedures 9 (Secretaries Council, National Association of Real Estate Boards, 1950). Fortunately for the national welfare, though perhaps unfortunately for tax law, this is not an uncommon situation. The activities of many trade groups are of benefit to both the public and the trade in general, and to individual members of the trade. As the Tax Court noted in National Leather & Shoe Finders Assn. v. Commissioner, 9 T.C. 121, 126 (1947), “it can hardly be supposed that individuals would often join organizations without the expectation of receiving some personal benefits therefrom.” Hence, the courts have often been called upon to determine whether the primary purpose and effect of an organization’s activities is to benefit the group or the individual, and upon such a determination has hinged the fate" }, { "docid": "22832866", "title": "", "text": "federal law attorney’s fees). Because DG has not requested a double award of attorney’s fees, there was no error in the award of attorney’s fees under federal law. B. Grumman’s Antitrust Counterclaims The district court granted DG’s motions for summary judgment with respect to Grumman’s tying claim under Section 1 of the Sherman Act as well as its monopolization claim under Section 2. We affirm both rulings, although on somewhat different grounds. 1. Illegal Tying Section 1 of the Sherman Act prohibits a seller from “tying” the sale of one product to the purchase of a second product if the seller thereby avoids competition on the merits of the “tied” product. See 15 U.S.C. § 1 (“Every contract ... in restraint of trade or commerce ... is declared to be illegal.”); Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 9-18, 104 S.Ct. 1551, 1556-1561, 80 L.Ed.2d 2 (1984); Lee v. Life Ins. Co. of N. Am., 23 F.3d 14, 16 (1st Cir.1994); Grappone, Inc. v. Subaru of New England, Inc., 858 F.2d 792, 794-97 (1st Cir.1988) (Breyer, J.); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 814-15 (1st Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 392, 102 L.Ed.2d 381 (1988). In addition to outlawing “positive” ties likely to restrain competition, Section 1 also forbids “negative” ties-arrangements conditioning the sale of one product on an agreement not to purchase a second product from competing suppliers. See Eastman Kodak Co. v. Image Technical Servs., Inc., - U.S. -, -, 112 S.Ct. 2072, 2079, 119 L.Ed.2d 265 (1992) (citing Northern Pac. Ry. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518-519, 2 L.Ed.2d 545 (1958)); Lee, 23 F.3d at 16. There are essentially four elements of a per se tying claim: (1) the tying and tied products are actually two distinct products; (2) there is an agreement or condition, express or implied, that establishes a tie; (3) the entity accused of tying has sufficient economic power in the market for the tying product to distort consumers’ choices with respect to the" }, { "docid": "14595047", "title": "", "text": "ISSUES On appeal, Shahawy raises three issues: (1) the district court’s dismissal of his Sherman Act claims for failure to satisfy the Act’s jurisdiction; (2) the district court’s finding that Shahawy’s complaint did not allege either the existence of a protected federal interest or state action for relief under 42 U.S.C.A. §§ 1983 and 1985; and (3) the district court’s abuse of its discretion in dismissing his pendent claims. I. A. Sherman Act Jurisdiction Shahawy contends that the district court erred in holding that his amended complaint did not satisfy the jurisdictional requirements of the Sherman Act. In McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), the Supreme Court established the jurisdictional requirements of the Sherman Act. In McLain, a class of individuals who employed real estate brokers in the purchase and sale of residential property in the Greater New Orleans area, sued real estate trade associations, real estate firms, and a class of realtors for engaging in restraint of trade in violation of section 1 of the Sherman Act, 15 U.S.C.A. § 1 (Supp.1984). Plaintiffs claimed to have satisfied the jurisdictional requirements of the Act by the allegations in their complaint and by trial testimony that the financing of residential property in the Greater New Orleans area included out-of-state investors, multi-state lending institutions, interstate secondary mortgage market activity, and title insurance furnished by interstate corporations. In holding that such commercial activity satisfied the Sherman Act’s jurisdictional requirements, the Supreme Court ruled that the Act requires the demonstration of a “substantial effect on interstate com-; merce generated by respondents’ brokerage activity.” McLain, 444 U.S. at 242, 100 S.Ct. at 509. Further, the court ruled that the Sherman Act does not require that the “unlawful conduct itself [have] an effect on interstate commerce,” or that a plaintiff must quantify the adverse impact of a defendant’s anti-competitive activities for jurisdictional purposes. McLain, 444 U.S. at 243, 100 S.Ct. at 509. To invoke the jurisdiction of the Sherman Act, therefore, McLain mandates that a plaintiff show (1) that the local activity has" }, { "docid": "14595046", "title": "", "text": "ON PETITION FOR REHEARING HATCHETT, Circuit Judge: This appeal is from the district court’s dismissal of a lawsuit brought by a physician who was denied the privilege of performing a certain medical procedure at a hospital. The district court found the physician’s complaint insufficient to sustain a lawsuit based on violation of the anti-trust, civil rights, and federal and state contract laws. We reverse in part and affirm in part. FACTS Appellant, Mahfouz El Shahawy and his medical association, Mahfouz El Shahawy, M.D., P.A., (Shahawy), are on the staff of the Sarasota Memorial Hospital, a public hospital in Florida. A hospital committee denied Shahawy the privilege of conducting cardiac catheterizations in the hospital’s laboratory. Shahawy filed a complaint in the district court, Middle District of Florida, alleging unlawful conduct against several of the appellees. Shahawy alleged that appellees committed antitrust violations, deprivation of his civil rights, deprivation of due process of law, and engaged in illegal racketeering. The district court dismissed Shahawy’s original and amended complaints for failure to state a federal claim for relief. ISSUES On appeal, Shahawy raises three issues: (1) the district court’s dismissal of his Sherman Act claims for failure to satisfy the Act’s jurisdiction; (2) the district court’s finding that Shahawy’s complaint did not allege either the existence of a protected federal interest or state action for relief under 42 U.S.C.A. §§ 1983 and 1985; and (3) the district court’s abuse of its discretion in dismissing his pendent claims. I. A. Sherman Act Jurisdiction Shahawy contends that the district court erred in holding that his amended complaint did not satisfy the jurisdictional requirements of the Sherman Act. In McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980), the Supreme Court established the jurisdictional requirements of the Sherman Act. In McLain, a class of individuals who employed real estate brokers in the purchase and sale of residential property in the Greater New Orleans area, sued real estate trade associations, real estate firms, and a class of realtors for engaging in restraint of trade in violation of" }, { "docid": "7910309", "title": "", "text": "under the Sherman Act by section 4 of the Clayton Act, which provides for a suit to recover treble damages by any person injured in his business or property by the violation of the anti-trust laws. Section 16 of the Clayton Act allows injured parties to sue for injunctive relief. Illegal Boycott Section 1 of the Sherman Act prevents every combination or conspiracy on restraint of trade. The statute has been interpreted to prevent only unreasonable restraint. Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). Where, however, a practice has no redeeming virtue and is purely anti-competitive, it will be considered per se unreasonable without further inquiry. Broadcast Music, Inc. v. Columbia Broadcasting Co., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed. 2d 1 (1979). Group boycotts are among the categories of activity which the courts have considered per se illegal. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). In this case, plaintiff contends that the MLSLI constitutes a group boycott since it will provide its multiple listing service only to those real estate dealers who are members. However, where professional or trade organizations are involved, courts have been reluctant to apply a per se analysis to such practices because the pro-competitive aspects of a trade organization may outweigh the negative consequences it has on competition. Fashion Originators Guild of America v. Federal Trade Comm’n, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941). In the leading case on the anti-trust aspects of an MLS, United States v. Realty Multi-List, Inc., 629 F.2d 1351 (5th Cir.1980), the court declined to apply the per se analysis to a MLS and found that the pro-competitive aspects of an MLS were worthy of consideration under the rule of reason. Id., at 1367. The MLS functions like an exchange and provides wide dissemination of market information. See Austin, Real Estate Boards and Multiple Listing Systems as Restraints of Trade, 70 Columbia L.Rev. 1325, 1353-54 (1970). The court noted that anti-trust laws must allow reasonable ancillary restraints necessary" }, { "docid": "16453927", "title": "", "text": "is sometimes read as a monopolization case, see e. g., L. Sullivan, Antitrust § 48 (1977), the case also involved a Section 1 charge since the Terminal Association was, in essence, a combination of competing railroads. See 32 S.Ct. at 515. If one reads Terminal Railroad as a Section 1 case, it fits squarely within the rationale of the other cases cited in text, and, in addition, this reading helps to alleviate many of the problems regarding a monopolist’s duty to deal raised by the case. See, e. g., L. Sullivan, Antitrust § 48 (1977). Cf. Fulton v. Hecht, 580 F.2d 1243, 1248 & n. 2 (5th Cir. 1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1789, 60 L.Ed.2d 241 (1979) (making analogous point regarding the Deesen case, cited infra). . The assessment of the market power of the association, and its consequent potential for inflicting competitive harm, of necessity requires the definition of the relevant market. See Marin County Board of Realtors, supra, 1976 1 Trade Cases at 68,900. Here, it is undisputed that the relevant product market is the market for residential real estate brokerage services. See id. It is also necessary to assess the relevant geographic market. As one commentator has observed in the context of a case similar to that before us, “United States v. Times-Picayune Pub. Co. [105 F.Supp. 670 (E.D.La.1950), rev’d on other grounds, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953)] indicated that competitors must be foreclosed from a substantial market or part of a market for there to be restraint under the Sherman Act. If such a substantial impact on competition must be shown, it would seem to necessitate the determination of a relevant geographic market in order that the effect on competition therein may be realistically appraised.” Note, Arbitrary Exclusion from Multiple Listing: Common Law and Statutory Remedies, 52 Cornell L.Q. 570, 576-578 (1967) (footnotes omitted). See Marin County Board of Realtors, supra, 1976 -1 Trade Cases at 68,900; Austin, Real Estate Boards and Multiple Listing Systems as Restraints of Trade, 70 Colum.L.Rev. 1325, 1356 n.196 (1970). The Government" }, { "docid": "21809043", "title": "", "text": "Inc., 574 F.3d 1084, 1089 (9th Cir. 2009) (“Zero foreclosure exists where the tied product is completely unwanted by the buyer.”); Reifert v. S. Cent. Wisconsin MLS Corp., 450 F.3d 312, 323 (7th Cir. 2006) (“Despite Reifert’s desire to avoid purchasing a Realtors Association membership, without evidence of competitors in the market for services offered by the Realtors Association, there can be no foreclosure of competition.”); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 815 (1st Cir. 1988) (“Wells has failed to demonstrate the slightest market for membership in real estate boards that might have been affected by the defendants’ alleged tying arrangement.”); id. at 815 n.ll (“Wells’ real error here was in failing to show that there was a ‘market’ at all for real estate board membership.”). These cases dealt with purported ties between a real estate listing service and membership in a realtors’ association, Reifert, 450 F.3d at 323; Wells Real Estate, 850 F.2d at 805, or between sale of undeveloped lots and realtor’s commission for the sale of those lots, Blough, 574 F.3d at 1088. In these circumstances, the “tied product” was not a separate product at all, but merely an item tacked on by the seller to increase the total price for the primary product. Id. at 1089-90. These arrangements have “nothing to do with gaining power in the [tied] market or upsetting competition there.” Id. at 1090 (quoting IX Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1724b, at 270(2004 & Supp. 2009)). A buyer cannot purchase a realtor’s services separate from the purchase of land, and membership in a realtors’ association provides no benefits aside from the ability to use the multiple listing service, so the markets for those “products” did not exist. Instead, the “products” were merely an additional cost included in the desired product or service. See id. If the market for the tied product does not exist at all, then competition cannot be harmed in that non-existent market, so there can be no illegal tie. Although courts have framed this inquiry as several various elements" }, { "docid": "5154178", "title": "", "text": "single manufacturer was deemed to have an insufficient effect on interstate commerce to invoke the Sherman Act. Since 1940 the jurisdictional breadth of the Sherman Act has expanded significantly. “[Ajctivities within the flow of interstate commerce or affecting commerce are within the statute’s embrace . . . [and] [w]hat may appear to be relatively local will, in fact, ultimately affect similar or related goods or services moving into or out of a market.” P. Areeda & D. Turner, Antitrust Law ¶¶ 232a, 232b (1978). This expansive view was recently exemplified in a private antitrust action against real estate brokers and trade associations alleging that the defendants conspired to fix prices through an agreement to conform to a fixed rate of broker’s commissions on sales of residential realty. The Court ruled that the plaintiffs need not make the particularized showing of an effect on interstate commerce caused by the alleged conspiracy or other allegedly unlawful acts. Sherman Act jurisdiction could be established, rather, by demonstrating that the defendants’ brokerage activity had a substantial effect on interstate commerce. McLain v. Real Estate Board of New Orleans, Inc., 444 U.S. 232, 242, 100 S.Ct. 502, 509, 62 L.Ed.2d 441 (1980). Professors Areeda and Turner would presume the existence of Sherman Act jurisdiction even when trade restraints are localized based on their “inherent tendency to affect interstate resource allocation and the interstate movement of goods and services in our national economy.” P. Areeda & D. Turner, supra, ¶ 232b, at 230. . The relevant portions of this subsection follow: (b) It shall be an unfair labor practice for a labor organization or its agents— (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in" }, { "docid": "11991506", "title": "", "text": "U.S. 738, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Burke v. Ford, 389 U.S. 320, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967); Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127 (3d Cir. 1978); Taxi Weekly, Inc. v. Metropolitan Taxicab Board of Trade, Inc., 539 F.2d 907 (2d Cir. 1976); Lehrman v. Gulf Oil Corp., 464 F.2d 26 (5th Cir.), cert. denied, 409 U.S. 1077, 93 S.Ct. 687, 34 L.Ed.2d 665 (1972); see generally 1 Areeda Antitrust, supra, Hit 231-33; L. Sullivan, Handbook of the Law of Antitrust § 233a (1977). Appellees contend that their activities are purely local in nature and that if any interstate commerce was affected by the tying arrangement the amount was insignificant. We disagree. Regardless of how local the immediate effect of an activity might be, if the activity has a substantial and adverse effect on interstate commerce, the arrangement falls within the expansive reach of the Sherman Act. Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195, 95 S.Ct. 392, 398, 42 L.Ed.2d 378 (1974). The most recent Supreme Court pronouncement of the jurisdictional requirement of interstate commerce under the Sherman Act came in McLain v. Real Estate Board, Inc., 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980) (McLain). In McLain, the plaintiffs asserted that various real estate brokers, firms, and trade associations had conspired to fix real estate commissions on the sale of residential property in violation of § 1 of the Sherman Act. Both the district court and the Fifth Circuit Court of Appeals found the defendants' activities to be local in nature and without a substantial effect on interstate commerce. In reversing the Fifth Circuit, the Supreme Court held that the plaintiffs could show federal jurisdiction under the Sherman Act by “demonstratpng] a substantial effect on interstate commerce generated by respondent’s brokerage activity.” Id. at 242, 100 S.Ct. at 509. The Court concluded that it was unnecessary to make “the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of [defendants’] activity" }, { "docid": "16453928", "title": "", "text": "the relevant product market is the market for residential real estate brokerage services. See id. It is also necessary to assess the relevant geographic market. As one commentator has observed in the context of a case similar to that before us, “United States v. Times-Picayune Pub. Co. [105 F.Supp. 670 (E.D.La.1950), rev’d on other grounds, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953)] indicated that competitors must be foreclosed from a substantial market or part of a market for there to be restraint under the Sherman Act. If such a substantial impact on competition must be shown, it would seem to necessitate the determination of a relevant geographic market in order that the effect on competition therein may be realistically appraised.” Note, Arbitrary Exclusion from Multiple Listing: Common Law and Statutory Remedies, 52 Cornell L.Q. 570, 576-578 (1967) (footnotes omitted). See Marin County Board of Realtors, supra, 1976 -1 Trade Cases at 68,900; Austin, Real Estate Boards and Multiple Listing Systems as Restraints of Trade, 70 Colum.L.Rev. 1325, 1356 n.196 (1970). The Government has treated Muscogee County as the relevant geographic market in this case, and RML has not suggested otherwise. In reviewing the summary judgment for RML, therefore, we accept this area as the relevant market. Neither party has focused closely on this issue, however, and it will be left open on remand. We call the parties’ attention to one important observation on this matter: [Cjourts in rule of reason cases seldom proceed to engage in the meticulous analysis of power that is associated with monopolization cases. The issue is not whether defendants possess monopoly power, but whether they possess a substantial degree of market power. On this issue, a truncated or threshold analysis will suffice. For example, if defendants possess substantial shares of the market for a well differentiated product such as cellophane, we would assume significant power without scrupulous inquiry into cross-elasticity of substitute products. Courts are understandably loath to move into the intricacies and imponderables of thorough-going analysis of power and tend to avoid doing so where the need is not insistent. L. Sullivan," }, { "docid": "5152658", "title": "", "text": "Virginia only by a member of the Virginia State Bar, was an integral part of these interstate transactions, because lenders required, as a condition of making a loan, that title to the property in question be examined. The Court held, Given the substantial volume of commerce involved, and the inseparability of this particular legal service from the interstate aspects of real estate transactions, we conclude that interstate commerce has been sufficiently affected. 421 U.S. at 785, 95 S.Ct. at 2012 (footnote omitted). The lower court cases considering the applicability of the Sherman Act to real estate transactions have reached divergent results. In Marston v. Ann Arbor Property Managers (Management) Association, 302 F.Supp. 1276 (E.D.Mich.1969), aff’d, 422 F.2d 836 (6th Cir.), cert. denied, 399 U.S. 929, 90 S.Ct. 2244, 26 L.Ed.2d 796 (1970), students at the University of Michigan brought a class action, alleging that defendants violated § 1 of the Sherman Act by conspiring to fix apartment rental rates and by attempting to control the supply of new apartments in the market. The facts that out-of-state students rented apartments and that material from out-of-state was used in the construction of the apartment buildings were found by the court to be insufficient to establish jurisdiction. In Cotillion Club, Inc. v. Detroit Real Estate Board, 303 F.Supp. 850 (E.D.Mich.1964), plaintiffs alleged that defendants violated the Sherman Act by conspiring to prevent Blacks from purchasing homes in certain areas and by conspiring to exclude Black real estate brokers from membership in the defendant associations. Finding that the alleged restraints were purely local in nature and had only an incidental impact on interstate commerce, the court dismissed the Complaint for lack of jurisdiction. In both Diversified Brokerage Services, Inc. v. Greater Des Moines Board of Realtors, 521 F.2d 1343 (8th Cir. 1975) and Bryan v. Stillwater Board of Realtors, No. 77-1111 (10th Cir. July 26, 1977), the courts found that the interstate commerce requirement of the Sherman Act was not satisfied in cases where the plaintiffs alleged that they were illegally excluded from membership in the defendant board of realtors. In Diversified Brokerage, the" }, { "docid": "12410686", "title": "", "text": "of real estate business generally is not without difficulty, since the interests of both and of the public as well are served by a system which facilitates the exchange of real property. Indeed, Revenue Ruling 59-234 is based upon the assumption that the purposes of a multiple listing service are: “ (a) to assist members of the board in rendering better service to the public by creating a broader and more active market for real estate; (b) to stimulate and facilitate the transaction of business between members of the board through cooperation and exchange of exclusive listings; (c) to provide a medium through which real estate may be merchandised more efficiently and expeditiously to the advantage of both buyer and seller; and (d) to encourage realtors to uphold high standards of business practice and to further educate them in adhering to the principles of the Realtors’ Code of Ethics.” And a publication of the National Association of Real Estate Boards states simply that a multiple listing system is “a medium through which real estate may be merchandized efficiently and expeditiously to the advantage of the buyer and the seller and which will produce a greater profit to the Realtor.” Moss, Multiple Listing Practice and Procedures 9 (Secretaries Council, National Association of Real Estate Boards, 1950). Fortunately for the national welfare, though perhaps unfortunately for tax law, this is not an uncommon situation. The activities of many trade groups are of benefit to both the public and the trade in general, and to individual members of the trade. As the Tax Court noted in National Leather & Shoe Finders Assn. v. Commissioner, 9 T.C. 121, 126 (1947), “it can hardly be supposed that individuals would often join organizations without the expectation of receiving some personal benefits therefrom.” Hence, the courts have often been called upon to determine whether the primary purpose and effect of an organization’s activities is to benefit the group or the individual, and upon such a determination has hinged the fate of the exemption. Compare Automotive Electric Assn. v. Commissioner, 168 F.2d 366 (C.A. 6, 1948), with National" } ]

[ { "docid": "2952919", "title": "", "text": "that met the description of the shotgun in question, the certificate was not rendered inadmissible because the additional data referred to by Cowley was not mentioned therein. The court properly instructed the jury that they were to decide what weight should be given to this evidence. Cowley contends that the evidence is insufficient to support the verdict of guilty on count one. He calls attention to his testimony that he borrowed the shotgun from another and did not learn that the gun was “illegal” until the next day. Cowley testified that he then tried to find the man from whom he had borrowed the gun, and hunted all over Gallup for him. According to Cowley, late that night he was told that the owner of the gun was at Church Rock, New Mexico. He was leaving the Frances Slatton residence with the gun the next day, to return it to its owner, when the officers drove up, Cowley testified. Cowley also testified that he did not know that the type of gun he had in his possession had to be registered or that it had no serial number. Thus, according to Cowley, evidence of the essential element of wrongful intent was lacking. The jury was not required to accept Cowley’s version of the incident. Moreover, the evidence is clear that Cowley had the gun in his possession at the time he was seen on the porch, and prior thereto inside the house, and, at those times, he knew it was illegal for him to possess the gun. We hold the evidence sufficient. Finally, Cowley argues that the trial court erred by exerting undue influence on the jury in an effort to obtain a verdict after the jury had advised the court that it was deadlocked. In connection with this argument Cowley also contends that additional instructions given in an effort to obtain a verdict were erroneous and prejudicial. As a part of the general instructions given upon submission of the case to the jury, the trial court instructed as set out in the margin. The quoted instruction has some similarity" } ]

[ { "docid": "16692573", "title": "", "text": "to Dr. Cogan’s testimony, appellant had testified. During cross-examination he was asked: “So, isn’t it a fact that you would drink in order to quiesce [sic] your fears or your guilty feelings prior to going out and passing the money? Yes or no?” To which he replied, “That is correct.” Because the statement at issue had already been testified to in substance by appellant, its subsequent admission was not “plain error.” Appellant contends that the evidence failed to establish his possession of the counterfeit money, showing instead possession by Dashboard Stereo in its capacity as bailee. Appellant was not present at Dashboard when the money was removed from his ear. Also, appellant urges that the jury was improperly instructed on this issue. Fundamentally, the trial court employed a stock instruction on this issue which has been affirmed many times. See Federal Jury Practice and Instructions, 3rd ed., Devitt & Blackmar (1977), § 16.07 and citations therein. The jury was correctly instructed that possession may be either “actual” or “constructive,” and that it may be either “sole” or “joint,” and each of the concepts was accurately described. Constructive possession, by definition, is possession in law, but not in fact. Jersey City v. Zink, 133 N.J.L. 437, 44 A.2d 825 (1945). It rests on knowingly holding the power to exercise control over something. Amaya v. United States, 373 F.2d 197 (10th Cir. 1967). “Constructive possession” involves the exercise of dominion. United States v. Horton, 488 F.2d 374, 381 (5th Cir. 1973). Appellant briefly left his automobile in Dashboard’s possession without relinquishing his dominion as to it or its contents. For purposes of the statute herein, appellant remained in constructive possession. Appellant also challenges the court’s jury instructions as to his confession’s voluntariness, urging that the jury should have been told that they could consider appellant’s lack of legal assistance at the time of the confession. If a trial judge determines that a confession was made voluntarily, it shall be admissible along with relevant evidence as to its voluntariness and an instruction that the confession should be given such weight as the jury" }, { "docid": "14821516", "title": "", "text": "(8th Cir.1976). At the evidentiary hearing before the magistrate, Harris’s trial counsel testified that he had not objected to the improper comments because he felt they had made no impression on the jury. The seriously prejudicial nature of the improper comments in the prosecutor’s closing argument lead us to believe that competent trial counsel would have objected. We emphasize that this failure to object would not be sufficient, by itself, to constitute ineffective assistance of counsel. But again, it is fur ther evidence of the general ineffectiveness of Harris’s attorneys. L. Failure to Request Accomplice Testimony Instruction. The petitioner contends that the trial counsel rendered ineffective assistance because they failed to request an accomplice testimony instruction. Under Arkansas law, no felony conviction can be obtained on accomplice testimony unless corroborating evidence links the defendant to the crime. Ark.Stat.Ann. § 43-2116 (1977). Additionally, such an instruction generally indicates that the testimony of an accomplice should be considered with caution. See, e.g., Devitt & Blackmar, Federal Jury Practice & Instructions, § 17.06 (2d ed. 1977). The petitioner alleges that such an instruction was crucial in this case because the essence of the state’s case rested upon the testimony of two persons who were charged as Harris’s accomplices. Although the Arkansas Supreme Court has considered the sufficiency of the evidence corroborating the testimony of the accomplices and has found that it was sufficient, this finding does not determine how a jury would have reacted to the issue in the first instance. Harris v. State, supra, 558 S.W.2d at 145. Moreover, we do not believe that the petitioner need establish that he had a conclusive accomplice testimony defense. The unexcused failure of counsel to raise a known defense of potential merit is further evidence that counsel’s overall performance was below the customary level of skill of reasonably competent practitioners. m. THE PREJUDICE REQUIREMENT. Harris, by presenting the foregoing evidence, satisfied the first element of his ineffective assistance claim; he proved that his attorneys failed to perform with the degree of skill with which reasonably competent counsel would perform under similar circumstances. See supra, at" }, { "docid": "18003667", "title": "", "text": "by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court. It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense. This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial. Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence. Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording." }, { "docid": "18003678", "title": "", "text": "fact which the other count does not, the separate of fenses charged are not identical, even though the charges arise out of the same acts. Here, Count I charged possession of an unregistered firearm; Count II charged possession of a firearm not identified by a serial number. To convict defendant under Count I, no proof of lack of identification by serial number was needed but Count II did require such proof and it was established by the evidence. Defendant’s claim of double jeopardy must be rejected. Affirmed. . The instruction given read : “Now, tile Government has introduced into evidence a Certificate of the custodian of the National Firearms Register and Transfer Record, to the effect that he has made a diligent search and has found no record of any firearms or destructive device being registered to the defendant. Such a certificate is competent evidence that the item — items introduced in this case were not registered to the defendant. However, it is up to you to determine what evidence you will accept, and what weight you may give to any evidence presented to you in this case.” . The comment made was : Now, Ladies and Gentlemen, I want to read to you the one piece of evidence in this case that cannot be refuted. It is corroboration of everything Mr. Barbour says, and that is the tape recording of Mr. Robbin’s telephone conversation with Barbour when Barbour and the police were on the other end of the line. . Specifically, the indictment charged : “COUNT I “On or about the 16th day of March, 1972, at Albuquerque, in the State and District of New Mexico, the defendant, MILTON ROBBINS, aka Mickey Robbins, did knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968. In violation of Title 26 U.S.C. 5861(d) and 5871). “COUNT II “On or about the 16th day of March, 1972, at Albuquerque," }, { "docid": "18003677", "title": "", "text": "unpersuasive. No person is required to take possession of an unregistered firearm, whether he is the maker, a finder, or a receiver. The Act makes it equally unlawful for any person to receive or possess a firearm which is not registered to him, 26 U.S.C. § 5861(d), or to possess a destructive device which is not identified by a serial number. 26 U.S.C. § 5861 (i). Appellant insists that the indictment is defective because it, in effect, charges him twice with the same offense and that he was tried on the two counts and convicted with identical evidence thus exposing him to double jeopardy. The well-settled rule is, that for the double jeopardy provision to apply, the offense charged and tried in the first count and the offense charged in the second count must be identical in law and fact. The test for determining whether the offenses charged are identical is whether the facts alleged in one, if offered in support of the other, would sustain a conviction. Where one count requires proof of a fact which the other count does not, the separate of fenses charged are not identical, even though the charges arise out of the same acts. Here, Count I charged possession of an unregistered firearm; Count II charged possession of a firearm not identified by a serial number. To convict defendant under Count I, no proof of lack of identification by serial number was needed but Count II did require such proof and it was established by the evidence. Defendant’s claim of double jeopardy must be rejected. Affirmed. . The instruction given read : “Now, tile Government has introduced into evidence a Certificate of the custodian of the National Firearms Register and Transfer Record, to the effect that he has made a diligent search and has found no record of any firearms or destructive device being registered to the defendant. Such a certificate is competent evidence that the item — items introduced in this case were not registered to the defendant. However, it is up to you to determine what evidence you will accept, and what" }, { "docid": "14110210", "title": "", "text": "in discussing what he perceives the mens rea requirement should be under the statute. Each envisions a specific intent type of standard to which a mistake of fact defense could be raised. . Staples preserved this issue by timely objection and proffering the following instruction: \"[a]n essential element of the offense of possessing a machine gun, is that the possessor knew that the gun would fire fully automatically and the burden is upon the Plaintiff to prove that specific knowledge.” Appellant's App. Vol. I at 42, Tab E. .The jury instruction in Mittleider read: “The mere possession of a firearm which is required to be registered and has not been registered is a violation of the laws of the United States. It is not necessary for the government to prove that the defendant knew that the weapon in his possession was a machine gun within the meaning of the statute or that he knew that registration was required. It is sufficient if you find beyond a reasonable doubt that he knowingly possessed it.” 835 F.2d at 774. That instruction was based upon 2 E. Devitt and C. Blackmar, Federal Jury Practice and Instructions, § 59.04 (3d Ed. 1977). . We note that the circuits have diverged on the issue of whether actual knowledge is an element under § 5861(d). Compare United. States v. Ross, 917 F.2d 997 (7th Cir.1990); United States v. Shilling, 826 F.2d 1365 (4th Cir. 1987) (knowledge not required that weapon is subject to NFA) with United States v. Anderson, 885 F.2d 1248 (5th Cir.1989) (en banc); United States v. Williams, 872 F.2d 773 (6th Cir.1989) (need \"mens rea” or knowledge that weapon is covered by the NFA for § 5861 conviction). Even those circuits that diverge from Mittleider do so in light of different factual situations. In both Williams and Anderson, the weapons at issue had no external modifications. . See Appellant's Reply Br. at 9; BATF Ruling 81-4; 27 C.F.R. § 179.11. But see United States v. Sullivan, 919 F.2d 1403, 1412 n. 8 (10th Cir. 1990) (court observed that an AR-15 could be modified" }, { "docid": "18003665", "title": "", "text": "carefully considered the various claims of error asserted by the defendant and after a review of the record and consideration of the briefs submitted are convinced that the conviction of appellant on the two counts charged must be affirmed. Briefly summarized, it appears that evidence offered by the prosecution disclosed that Robbins was the manager of the Jack & Queens Nightclub at Albuquerque, New Mexico, that he engaged two men to construct homemade bombs that could be used for the purpose of putting competitive nightclubs in the area out of business. One of the men so employed by appellant informed the police of the activity; a search warrant was issued for a search of his office quarters in the Jack & Queens Club. Pursuant to the search of appellant’s office, there was found a cylindrical canister with a metal top and bottom and a straw filled with gunpowder placed across the top. Alongside the canister was a glass jar containing black powder. An explosive expert from the F.B.I. Laboratory examined the items so found, conducted experiments, and at the trial expressed his expert opinion that the device would ignite certain types of combustible materials that were in contact or immediately adjacent to the device. The prosecution was required to establish as an essential element of the case that the firearm in question had not been registered and to-establish this fact introduced a certificate of the custodian of the National Firearms Register and Transfer Record stating in effect that he had made a diligent search and had found no record of any firearms being registered to Robbins. The instruction of the trial court explained to the jury that the certificate was competent evidence to show that the item introduced in evidence was not registered to the appellant but that it was up to the jury to determine what evidence to accept and what weight they might give to any evidence presented in the case. The certificate was sufficient evidence from which the jury could find and determine, as it did, that the firearm in question had not been registered as required" }, { "docid": "18003668", "title": "", "text": "Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence. Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording. We have examined the indictment, Count I of which appellant contends is defective. This count charges in language of the statute, 26 U.S.C. § 5861(d), with the citation of the penalty provision found in 26 U.S.C. § 5871 added, that appellant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.” Appellant complains that the failure to include any reference to the section of the statute which defines a firearm or says that a destructive device is a firearm and the absence of any statement that a homemade incendiary bomb has to be registered, fails to sufficiently apprise the accused of what he must be prepared to meet. This contention is without merit. Count I of the indictment- charged possession by appellant of a destructive device, a homemade incendiary bomb, a firearm, which had not been registered to him, and in" }, { "docid": "1613559", "title": "", "text": "identified “in such manner as the Secretary [of the Treasury] may by regulations prescribe,” 26 U.S.C. § 5842(c), and one such regulation permits the maker or importer of such a destructive device to apply to the BATF by letter for authorization to use an identification other than a serial number if imprinting, stamping, or engraving, etc., would be dangerous, see 27 C.F.R. § 179.102 (1991). The court instructed the jury that with respect to count 3 the government was required to prove beyond a reasonable doubt to secure a conviction that “the destructive device was not identified by a serial number as required by the National Firearms Act.” (Trial Transcript p. 229.) Javino challenges this instruction because it did not advise the jury that the bomb could permissibly, under the above regulation, have borne some other form of identification. For a number of reasons, his challenge is meritless. First, the failure to mention that identification other than by serial number could have been authorized under 27 C.F.R. § 179.102 was an omission as to potentially applicable law, not an omission as to an element of the offense. Since Javino did not request that the court instruct the jury with respect to this regulation, his present challenge is waived. Moreover, even had he requested such a charge, its omission would not have been error, since the court is not required to give an instruction for which there is no evidentiary basis in the record. See, e.g., United States v. Paccione, 949 F.2d 1183, 1200 (2d Cir.1991); United States v. Leonard, 524 F.2d 1076, 1084 (2d Cir.1975), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976). Here, the only evidence on the subject was the government’s proof that there had been no application by Javino or Block with respect to the incendiary bomb found in their possession. B. The Claim of Ineffective Assistance of Counsel Javino’s claim of ineffective assistance of counsel is principally that his trial attorney (1) failed to request instructions on offense elements as discussed above, (2) failed to request an instruction that Block’s testimony should" }, { "docid": "14110209", "title": "", "text": "can register it, because it obviously becomes registerable; is that right? MR. KIRKPATRICK: Yes, sir. THE COURT: So, one of the issues the Court should probably submit to the jury is a finding as to whether the nipple was there such that it could not be placed in automatic while it was in the possession of the defendant. Appellant’s App. Vol. I at 160, 163-64, Tab J (emphasis added). Staples, however, failed to pursue this argument at any point during the trial. Instead, he waited until the filing of his reply brief to attempt to argue that the government \"did not establish when the stop was filed off.” Reply Br. at 3. As the court correctly observed in the above-quoted colloquy, that was a question of fact that Staples properly should have presented to the jury. . This section makes it unlawful for any person \"to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.\" 28 U.S.C. § 5861. . Staples uses these terms interchangeably in discussing what he perceives the mens rea requirement should be under the statute. Each envisions a specific intent type of standard to which a mistake of fact defense could be raised. . Staples preserved this issue by timely objection and proffering the following instruction: \"[a]n essential element of the offense of possessing a machine gun, is that the possessor knew that the gun would fire fully automatically and the burden is upon the Plaintiff to prove that specific knowledge.” Appellant's App. Vol. I at 42, Tab E. .The jury instruction in Mittleider read: “The mere possession of a firearm which is required to be registered and has not been registered is a violation of the laws of the United States. It is not necessary for the government to prove that the defendant knew that the weapon in his possession was a machine gun within the meaning of the statute or that he knew that registration was required. It is sufficient if you find beyond a reasonable doubt that he knowingly possessed it.” 835 F.2d" }, { "docid": "18003669", "title": "", "text": "We have examined the indictment, Count I of which appellant contends is defective. This count charges in language of the statute, 26 U.S.C. § 5861(d), with the citation of the penalty provision found in 26 U.S.C. § 5871 added, that appellant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.” Appellant complains that the failure to include any reference to the section of the statute which defines a firearm or says that a destructive device is a firearm and the absence of any statement that a homemade incendiary bomb has to be registered, fails to sufficiently apprise the accused of what he must be prepared to meet. This contention is without merit. Count I of the indictment- charged possession by appellant of a destructive device, a homemade incendiary bomb, a firearm, which had not been registered to him, and in Count II, he was charged with possessing such destructive device which was not identified by a serial number as required by the applicable statute. Rule 7(c), F.R.Cr.P., has put an end to “the rules of technical and formalized pleading.” Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240. Imperfections of form that are not prejudicial are disregarded and common sense prevails over technicalities. The sufficiency of indictments must be determined on the basis of practical rather than technical considerations and the validity of attacks on them must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting. Count I of the indictment, in plain, concise and definite language, alleged the essential facts constituting an offense under the statute. Under provisions of 26 U.S.C. § 5861(d), possession of a prohibited firearm not registered to a person was made unlawful. The firearm which was allegedly possessed by appellant was referred to as a “destructive device being more particularly described as" }, { "docid": "23150542", "title": "", "text": "611, 612, 26 L.Ed. 1135 (1881)). Where the statutory definition of an offense employs generic terms, it is not sufficient to charge the offense in the same terms employed by the statute; the indictment must “descend to particulars.” Russell, 369 U.S. at 765, 82 S.Ct. at 1047 (quoting United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875)). In Robbins v. United States, 476 F.2d 26 (10th Cir.1973), we held that an indictment which alleged that the defendant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record” sufficiently alleged the essential facts constituting an offense under the statute and need not be accompanied by citation to the section of the statute which defines the term “firearm.” 476 F.2d at 30. We held that the indictment was not vague or indefinite. Id. at 31. Here the indictment specifically identified the “firearm” by serial number and as an AR-15 Rifle with a drop-in auto sear. We think that is sufficient. Although it might have been preferable to allege that the AR-15 was a “machine gun” within the meaning of 26 U.S.C. § 5845(b), and not a “rifle” (§ 5845(c)), we do not think the failure to specify which statutory definition applied to the AR-15 Rifle impermissibly hindered the defendants’ ability to prepare their defense or deprived them of their Fifth Amendment right to trial on charges made by a grand jury. We hold that Count 5 sufficiently charged a violation of 26 U.S.C. § 5861(d). IV. Improper Use of 4-0^(b) Evidence All of the defendants argue that they were denied a fair trial because the prosecutor repeatedly elicited evidence of uncharged crimes, wrongs or other acts in contravention of Federal Rules of Evidence 403 and 404. They make three related arguments: first, that the trial court abused its discretion when it admitted such evidence; second, that the defendants were unfairly prejudiced by the prosecutor’s improper use of such evidence after the trial court sustained defendants’" }, { "docid": "23201316", "title": "", "text": "been incorrect. Also, the failure to instruct on ratification and laches is based on the Court’s determination that defendants had failed to come forward with evidence to support those defenses, a decision which we affirm. Appellants’ numerous objections to the instructions given are either without merit, or are based on an inaccurate reading of the record. We shall briefly address those contentions. Appellants claim the Court erred in instructing the jury to consider the failure to explain or deny inferences, weaker evidence and wilful suppression because there was no evidence to justify such instructions. This argument is apparently a byproduct of appellants’ claim that plaintiff failed to introduce any evidence to support his claim. Since there were numerous exhibits and extensive testimony in this trial, this instruction was clearly proper. Appellants claim error in the Court’s instruction that a broker’s activities are of necessity connected with the purchase and sale of securities. Appellants contend that “the effect of this instruction was to take away from the jury the question of whether there was a fraud as to each purchase and each sale in the account.” While it is difficult to perceive how this instruction had that effect, such an effect is entirely permissible in a claim of churning. Appellant also attacks the use of the standard jury instructions on churning. See Devitt & Blackmar, Federal Jury Practice and Instructions 3rd Ed. (1977) § 98.13. That instruction provides: “Churning occurs when a broker, exercising control over the volume and frequency of trades, abuses his customer’s confi dence for personal gain by initiating transactions that are excessive in view of the character of the account and the customer’s objectives as expressed to the broker. Churning, if established by a preponderance of the evidence, is a scheme or artifice to defraud and a fraudulent and deceptive device within the meaning of Rule 10b-5.” We believe this instruction correctly states the law, and was properly given in this case. Appellants assert that it was error to instruct the jury that a customer invariably relies on his broker. This misstates the instruction given by the" }, { "docid": "18003666", "title": "", "text": "experiments, and at the trial expressed his expert opinion that the device would ignite certain types of combustible materials that were in contact or immediately adjacent to the device. The prosecution was required to establish as an essential element of the case that the firearm in question had not been registered and to-establish this fact introduced a certificate of the custodian of the National Firearms Register and Transfer Record stating in effect that he had made a diligent search and had found no record of any firearms being registered to Robbins. The instruction of the trial court explained to the jury that the certificate was competent evidence to show that the item introduced in evidence was not registered to the appellant but that it was up to the jury to determine what evidence to accept and what weight they might give to any evidence presented in the case. The certificate was sufficient evidence from which the jury could find and determine, as it did, that the firearm in question had not been registered as required by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court. It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense. This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial." }, { "docid": "16651589", "title": "", "text": "crime. Additionally, the evidence of nonregistration did not mislead the jury about the duty of registration, because the trial court properly instructed the jury on the law to be applied: To establish the offense with which the defendants are charged, there are two essential elements which the Government must prove beyond a reasonable doubt. First: The defendants at the time and place charged in the indictment knowingly conspired to receive or possess a machine gun or a silencer; and Second: The machine gun or silencer intended to be received or possessed was not to be transferred and registered with the approval of the Secretary of the Treasury. Transcript at 649. Using this explanation of the law, the jury could not convict appellants simply for failing to register the firearms. The trial court clearly required the jury to find a conspiracy to possess unregistered firearms. Indeed, the trial court’s instructions on specific intent presented a legal standard more favorable to appellants than the standard established by the Gun Control Act: the trial court required “proof beyond a reasonable doubt that a defendant had knowledge that the firearms had not been properly registered,” Transcript at 651, while “[t]he Act requires no specific intent or knowledge that the [firearms] were unregistered,” U. S. v. Freed, 401 U.S. at 607, 91 S.Ct. at 1117, 28 L.Ed.2d 256 (1971). In light of these instructions, the evidence of nonregistration cannot be viewed as prejudicial or misleading. The instructions also cured any possible confusion caused by the trial judge’s comment upon the evidence of nonregistration. During the discussion of appellants’ objections to this evidence, the trial judge said: “Whether or not they did [have permission from the Secretary of the Treasury] or not is the ultimate issue involved in this lawsuit, in the Government’s case.” Record at 374. Of course, nonregistration was a crucial issue; in some sense it may have been the ultimate issue. Nevertheless, at the close of evidence the trial court properly instructed the jury to disregard his comments upon the issues or evidence: Do not assume from anything I have said or done" }, { "docid": "18003663", "title": "", "text": "TEMPLAR, District Judge. Appellant Milton Robbins was found guilty by a jury on Count I of a two-count indictment of having possession of a firearm consisting of a homemade incendiary bomb, alleged to be a destructive device, and not registered to him in the National Firearms Registration and Transfer Record, in violation of Title 26 U.S.C. §§ 5861(d) and 5871. He was also found guilty on Count II which charged him with possessing this same firearm which was not identified by a serial number as required by Section 5842 of Title 26, United States Code, in violation of Title 26 U.S.C. §§ 5861 (i) and 5871. Following his conviction, a sentence of five years was imposed on Count I, followed by a suspended sentence on Count II for five years consecutive to the sentence imposed on Count I. In his appeal Robbins complains that improper and prejudicial instructions were given, over objection, by the trial court, that his motion for a mistrial was denied when the prosecutor made comments in the jury argument inferring that defendant had not taken the stand and testified, and that the indictment was defective because the specific sections and subsections of the statute under which he was prosecuted were not cited. Appellant insists that because the indictment fails to indicate any section or subsection of a statute in which is stated that knowledge that possession of a firearm not having a serial number and not registered is a violation of law, the indictment does not state an offense since it fails to require the element of scienter or intent to constitute a crime. He further contends that the Magistrate’s refusal at his preliminary hearing to allow him to examine prior written statements of the prosecution’s witnesses constitutes reversible error, that the statute under which defendant is charged violates the self-incrimination clause of the 5th Amendment, or in the alternative violates the equal protection clause, and lastly defendant claims the indictment is defective because he is charged with the same offense in each of the two counts and is thereby subjected to double jeopardy. We have" }, { "docid": "11881611", "title": "", "text": "the ultimate determination of the accused’s “guilt or innocence” is similar to a finding of “reasonable doubt,” we cannot say that the charge did not convey the proper instruction to the jury. We previously have approved an instruction that similarly substituted the phrase “along with all [the] other evidence” and did not stress that “character evidence standing alone is sufficient to raise a reasonable doubt.” See United States v. Fontenot, 483 F.2d 315, 323 (5th Cir. 1973). Nor can the appellant complain that the judge told the jury that “[character] evidence does not preclude the Defendant from being . . . involved” in criminal activity since that instruction is a correct statement of the law. To be sure, had the district judge submitted the previously approved jury instruction on character evidence drafted by the Fifth Circuit District Judge’s Association, and requested by the appellant, this much of our opinion would be unnecessary. Callahan, 588 F.2d at 1086. Nonetheless, so long as the charge accurately reflects the law and the facts, the district judge is vest ed with broad discretion in formulating his charge, E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 7.01, at 198 (1977), and we will not lightly disturb his judgment. The appellant’s other objection to the court’s charge is far more serious. In the face of clear and unmistakable authority that a federal trial judge in this circuit instruct the jury on the presumption of innocence at the close of the case, see United States v. Fernandez, 496 F.2d 1294, 1299 (5th Cir. 1974); United States v. Davila-Nater, 474 F.2d 270, 285 (5th Cir. 1973), the district judge chose only to instruct the jury to “recall” “some general definitions and instructions,” including the presumption of innocence, given at the outset of the trial. While we approve Judge Parker’s decision to follow the better practice of instructing the jury on the fundamentals of a criminal trial prior to taking any evidence, see ABA Advisory Committee on the Criminal Trial, Trial by Jury § 4.6(d) (1968), his subsequent failure to repeat those instructions with the remainder" }, { "docid": "1613557", "title": "", "text": "made in the United States. Accordingly, proof of an essential element of count 1 was lacking, and Javino’s conviction on that count must be reversed. 2. Counts 2 and 3 Javino’s challenges to the sufficiency of the evidence and instructions on counts 2 and 3 of the indictment do not require extended discussion. Count 2 charged Javino with violation of § 5861(d) of the Act, which makes it unlawful for any person “to receive or possess a firearm which is not registered to him.” 26 U.S.C. § 5861(d). The government is not required to prove that the defendant knew that the incendiary bomb he possessed was not registered. See United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971): The Act requires no specific intent or knowledge that the [destructive devices] were unregistered.... [T]he only knowledge required to be proved [is] knowledge that the instrument possessed was a firearm. Id. at 607, 91 S.Ct. at 1117. Dealing with hand grenades, the Freed Court noted that regulations of firearms are adopted in the interest of public safety, and “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Id. at 609, 91 S.Ct. at 1118. Likewise, crude varieties of incendiary bombs are well known to be within the scope of the Act. United States v. Cruz, 492 F.2d 217, 219 (2d Cir.) (Molotov cocktail), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974). Given the nature of the device possessed by Javino&emdash;a container filled with combustible liquid and having attached to it a large explosive device with a wick, it was not error for the trial court not to instruct the jury that in order to find him guilty on count 2 it must find that he knew the incendiary bomb he possessed was unregistered. Count 3 charged Javino with receipt and possession of a destructive device not identified by a serial number, in violation of 26 U.S.C. §§ 5861(i) and 5871. Section 5842(c) of the Act states that destructive devices such as bombs are to be" }, { "docid": "22977211", "title": "", "text": "evidence, provided that the comments do not call attention to the defendant’s own failure to testify. United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984). And we have held that a “comment on the failure of the defense as opposed to the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant’s Fifth Amendment privilege.” United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988) (citation omitted); see also Soulard, 730 F.2d at 1306-07. Applying these standards, we hold that the prosecutor’s closing argument did not violate Mares’ fifth amendment rights. The challenged portion of the argument was expressly directed at the appellants’ “defense counsel”; the prosecutor used the pronouns “they” and “their” in the course of referring to the closing arguments she expected the appellants’ attorneys to make. Too, the comments were intended to highlight what the prosecutor felt were weaknesses in Mares’ case; they were not in any manner directed at the appellant’s failure to take the stand. The comments likewise did not shift the burden of proof to the appellant. It is a common practice for one side to challenge the other to explain to the jury uncomfortable facts and inferences. The prosecutor did not argue that a failure to explain them adequately required a guilty verdict, and, in fact, she reiterated throughout her closing that the burden of proof was on the government. The district judge also instructed the jury that counsel’s arguments were not evidence; that the appellant was not required to prove his innocence; and that no inference could be drawn from the appellant’s failure to testify. We have held that such instructions are sufficient to cure prejudice resulting from improper prosecu-torial argument. United States v. Fleishman, 684 F.2d 1329, 1344 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). The district court did not err in ruling that the prosecutor’s argument was proper. C. SIXTH AMENDMENT CLAIM Appellant Mares argues that his sixth amendment right to confront the witnesses against him was violated in two ways by the expert" }, { "docid": "6894454", "title": "", "text": "crime. Nevertheless, the evidence of the firearm found in the back seat of the van within reach was sufficient to establish “carrying” of firearms, although it did not compel such a finding. As in Holmes, there was evidence of multiple firearms introduced at trial against the defendants, and the jury’s verdict did not necessarily rest on the evidence that would sustain a conviction for “carrying” a firearm. We remanded the case for a new trial because, although the evidence could support a “carry” conviction, this determination could not be made by appellate review. The recent decision of the United States Court of Appeals for the Tenth Circuit in United States v. Miller, 84 F.3d 1244, 1258 (10th Cir.1996) also follows, in detailed fashion, the analysis that we have outlined here. In that case, the defendant was charged with using and carrying a firearm. Employing the analysis that we have outlined, the court first noted that, had the district court correctly instructed the jury with respect to both “use” and “carry,” Griffin would allow affirmance if the evidence was sufficient under either prong. Id. at 1257. However, because the district court had given a pre-Bailey “use” instruction, reversal was required “unless we can determine with absolute certainty that the jury based its verdict on the ground on which it was correctly instructed.” Id. Upon examining the record, the court concluded that the jury’s verdict might well have been predicated upon the pre-Bailey “use” instructions because there was evidence to support such decision. Therefore, the court determined that it could not allow the use conviction to stand. The court then determined that, although the defendant had articulated his argument in terms of the sufficiency of the evidence, the gravamen of his submission was that the jury had not been instructed properly. Id. at 1258. Relying on its earlier decision in United States v. Wacker, 72 F.3d 1453 (10th Cir.1995), cert. denied, - U.S. -, 117 S.Ct. 136, — L.Ed.2d - (1996), it held that a remand for a new trial was proper if the evidence of record established that a jury properly" } ]

[ { "docid": "403949", "title": "", "text": "LUCERO, Circuit Judge. Dorothy and Michael O’Brien, together with their son Christopher O’Brien, appeal a jury’s finding that they operated an illegal gambling business in violation of 18 U.S.C. § 1955, and conspired to do so in violation of 18 U.S.C. § 371. Their primary challenge on appeal is to the sufficiency of the evidence adduced at trial. Additionally, Christopher and Dorothy assert errors in the instructions given to the jury; and Christopher challenges the admission in evidence of certain records. I The O’Briens do not dispute that a gambling business was operated on property co-owned by Dorothy and Michael, the so-called “Blue House” in Ottawa County, Oklahoma. Inside the Blue House were seventeen video machines, each used by the establishment’s patrons for gambling purposes. Patrons deposited money into the machines. The machines recorded deposits as a series of credits that could be staked on the outcome of the game played by the machine. If credits were left on a machine when a patron decided to stop playing, they could be exchanged for cash with one of two Blue House employees, Jean Buxton or her daughter, Debra Krauser, both of whom had been hired by Dorothy. When a player finished with more credits than she began, she would make money; if less, the gambling business did. II To secure a conviction under 18 U.S.C. § 1955, the government must prove that a defendant conducted, financed, managed, supervised, directed, or owned all or part of an “illegal gambling business.” § 1955(a). That business must: (1) be in violation of state law; (2) “involve five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business”; and (3) remain in “substantially continuous operation” for more than thirty days or have a gross revenue of $2,000 in a single day. See § 1955(b)(l)(i)-(iii). Section 1955 is not a specific intent statute. United States v. Smaldone, 485 F.2d 1338, 1348 (10th Cir.1973). To be convicted under this provision, therefore, a defendant need not know that the gambling business involved five or more people, remained in operation for thirty" } ]

[ { "docid": "426848", "title": "", "text": "the defendants’ motion for judgment of acquittal based on the sufficiency of the evidence pertaining to the animal fighting venture’s connection to interstate commerce; (2) whether the district court erred in denying the defendants' request to instruct the jury that the government had the burden to prove that the defendants' activities had a substantial effect on interstate commerce for a conviction to obtain; and (3) whether the district court erred in admitting certain evidence relating to Lawson’s sale of gaffs. . Lawson and Peeler were not charged with participating in any gambling activities relating to the animal fighting venture. . Dyal originally contended that the district court improperly struck from the indictment the words \"willfully” and \"knowingly,” but has abandoned that facet of her argument. . Although Dyal cites United States v. O’Brien, 131 F.3d 1428, 1430 (10th Cir.1997) for the proposition that the government must show that a defendant knew that her act was one of participation in gambling, the court specifically stated in O'Brien that \"Section 1955 is not a specific intent statute,” and that \"[t]o be convicted under this provision, ... a defendant need not know that the gambling business ... was violative of state law.” Id. Thus, Dyal’s reliance on O’Brien weakens her argument rather than strengthens it. . As discussed, a conviction under 18 U.S.C. § 1955 requires as an element of the offense that the defendant have violated a state or local gambling law. . A different rule is applicable when the conviction concerning one of the objects is set aside on factual, as opposed to legal, grounds. See Griffin v. United States, 502 U.S. 46, 56, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (holding that the Due Process Clause does not require a general guilty verdict on a multiprong conspiracy be set aside if the evidence is inadequate to support conviction as to one of the objects); Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (\"when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the" }, { "docid": "426826", "title": "", "text": "18 U.S.C. § 1955 (collectively, the gambling convictions). The language of 18 U.S.C. § 1955 provides, in relevant part, that “[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.” The statute defines an “illegal gambling business” in relevant part as a “gambling business which is a violation of the law of a State or political subdivision in which it is conducted.” 18 U.S.C. § 1955(b)(l)(i). Dyal raises two arguments in seeking to overturn the gambling convictions. First, Dyal contends that the district court erred in failing to charge the jury that Dyal must have known that her conduct constituted gambling under South Carolina law. Second, Dyal argues that the district court erred in instructing the jury that the South Carolina gambling statute, S.C.Code § 16-19-130, is violated when a person pays an entry fee to enter a contest of skill and the winnings depend on the number of entries. Both these arguments address issues of law, and, accordingly, we review these issues de novo. Cheek, 94 F.3d at 140. A. Dyal argues that the district court erred by failing to instruct the jury that the defendants must know that their conduct constituted illegal gambling under South Carolina law. According to Dyal, the district court’s construction of the statute improperly eliminated any mens rea requirement, and allowed the government to obtain a conviction simply by showing that the defendants conducted an enterprise that accepted entry fees for a derby, and that the amount of winnings was dependent on the number of entries. Dyal contends that if she concluded in “good faith” that her conduct was not gambling, then she could not be convicted under 18 U.S.C. § 1955, even though that statute may set forth only a general intent crime. We disagree with Dyal’s argument. Initially, we observe that the plain language of 18 U.S.C. § 1955 does not require that a defendant know that her conduct constitutes illegal gambling under state law. Accordingly, numerous courts have rejected the" }, { "docid": "426834", "title": "", "text": "offering the prize must permanently relinquish the prize upon performance of a specified act[, but] [i]n a wager, each party has a chance of gain and takes a risk of loss”) (internal quotation marks removed). Accordingly, based on these distinctions, we conclude that the district court did not err its instructions to the jury concerning the elements of S.C.Code § 16-19-130. For these reasons, we affirm Dyal’s convictions for violating the illegal gambling statute, 18 U.S.C. § 1955. VII. In view of our holdings vacating the convictions for violating the animal fighting statute but affirming the illegal gambling statute convictions, we find it necessary to determine whether the conspiracy convictions may stand. We first consider the conspiracy convictions relating to Scott Lawson and Peeler, who were not indicted or convicted for engaging in illegal gambling under 18 U.S.C. § 1955. Scott Lawson and Peeler were charged with “Conspiracy to Violate the Animal Welfare Act.” As alleged in the Lawson indictment, the only object of the conspiracy in which they allegedly participated was to “sponsor and exhibit an animal in an animal fighting venture,” in violation of 7 U.S.C. § 2156(a)(1). Thus, the term “sponsor” was integral to the conspiracy conviction, and for the reasons discussed above, we are unable to conclude that “there is no reasonable possibility that the verdict was affected by” Juror 177’s misconduct in researching the definition of “sponsor” on Wikipedia. See Cheek, 94 F.3d at 142. Accordingly, we vacate Scott Lawson’s and Peeler’s conspiracy convictions, and award them a new trial with respect to that charge. The conspiracy charges and convictions for defendants Dyal, Sheri Hutto, Wayne Hutto, and Collins (the Dyal defendants) require us to engage in a different analysis. With respect to these defendants, the government framed its indictments as alleging a single conspiracy count for “Conspiracy to Violate the Animal Welfare Act and to Engage in an Illegal Gambling Business.” (Emphasis added.) The indictment thus alleges a multi-object conspiracy, and does so in the conjunctive. Ordinarily, when a conviction under a multi-object conspiracy indictment is supported on one ground but is legally inadequate" }, { "docid": "19800976", "title": "", "text": "in interstate commerce a knife, a gaff or any other sharp instrument attached, or designed or intended to be attached, to the leg of a bird for use in an animal fighting venture” in violation of 7 U.S.C. § 2156(e). Count III charged Kingrea with the substantive crime of aiding or abetting the sponsoring or exhibiting of “an animal fighting venture” in violation of 7 U.S.C. § 2156(a)(1). Count IV alleged that “as principals and/or aiders and abettors,” Kingrea and others “did unlawfully and knowingly conduct ... an illegal gambling business, said gambling business involving betting on cockfighting ...” in violation of the laws of the Commonwealth of Virginia, 18 U.S.C. § 2, and 18 U.S.C. § 1955. At the close of the government’s case-in-chief Kingrea moved for judgment of acquittal pursuant to Rule 29 of the Rules of Criminal Procedure on several grounds: (a) that the government’s evidence was insufficient, (b) that the grand jury failed to allege the statutory elements of the federal crimes in Counts I and III, (c) that the evidence failed to establish a violation of the Virginia statutes set forth in Counts I and IV, and (d) that the government failed to establish the necessary nexus with interstate commerce to support a conviction under Count II. The district court granted Kingrea’s motion with respect to Count III but denied the motion in all other respects. At the close of the case the district court instructed the jury as follows: I tell you that in order to reach a verdict of guilty as to Count One, the jury need only find beyond a reasonable doubt that the defendant conspired to engage in conduct which, if carried out, would violate one of these statutes, either Title VII United States Code Section 2156(a)(1) pertaining to animal fighting ventures or Title 18 United States Code Section 1955 pertaining to illegal gambling businesses. I charge you that Title VII United States Code Section 2156(a)(1) makes it a crime for anyone to knowingly sponsor or exhibit an animal in an animal fighting venture if any animal in the venture was" }, { "docid": "426782", "title": "", "text": "elements of 7 U.S.C. § 2156. See 7 U.S.C. § 2156(g) (defining “animal fighting venture” as “any event, in or affecting interstate or foreign commerce.... ”). After about nine hours of deliberations conducted over two days, the jury returned a verdict finding all defendants guilty on all counts. As discussed in greater detail in this opinion, the district court was informed several days after the verdict that one of the jurors had conducted unauthorized research on the internet during an overnight recess in the jury deliberations. The district court ordered a hearing, in which it was determined that a juror researched on Wikipedia the definition of “sponsor,” one of the elements of the offense under the animal fighting statute. After the hearing, the district court entered a written order, finding that the juror had committed misconduct but that the defendants were not prejudiced by the juror’s actions. Accordingly, the district court denied the defendants’ motion for a new trial. The district court sentenced Scott Lawson and Peeler to a term of three years’ probation and a monetary fine. The district court sentenced Dyal, Sheri Hutto, and Wayne Hutto each to a term of imprisonment of 12 months and one day. The district court determined that Collins was a leader or organizer of the conspiracy, adjusted his guidelines range accordingly, denied his motion to reduce his guidelines range for acceptance of responsibility, and sentenced him to a term of imprisonment of 21 months, in addition to a monetary fine. All defendants filed timely notices of appeal. II. Lawson first argues that his convictions for violating the animal fighting statute should be vacated because Congress lacks power under the Commerce Clause to prohibit the fighting of gamefowl. We addressed this identical argument in United States v. Gibert, 677 F.3d 613 (4th Cir.2012), a companion case that we consolidated with Lawson’s appeal, for which we are issuing an opinion concurrently with our decision in this case. In Gibert, we hold that the activity of animal fighting substantially affects interstate commerce and, thus, is a subject that Congress has the power to regulate under" }, { "docid": "426838", "title": "", "text": "reject the challenges made by several of the defendants to their convictions for participating in an illegal gambling business, and we affirm the illegal gambling statute convictions of the Dyal defendants. We affirm the conspiracy convictions of the defendants who were charged with engaging in a conspiracy to violate both the Animal Welfare Act and to violate the illegal gambling business statute, but we vacate the conspiracy convictions of Scott Lawson and Peeler, whose conspiracy charges related solely to the Animal Welfare Act. We do not reach the merits of Collins’ arguments concerning his sentencing, nor do we address the remaining issues raised by the appellants. We remand this matter to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED . Lawson further argues that the district court erred in its rulings with respect to certain evidentiary matters and the instructions given to the jury on the animal fighting statute charges. In light of our holding, we do not reach those issues. We also do not reach the argument made by James Collins, Jr., that the district court erred in its application of the sentencing guidelines. . The indictment named as Lawson’s and Peeler's co-defendants Jeffrey Brian Gibert, Michael Monroe Grooms, Gerald Benfield, John Carlton Thurman Hoover, Michael T. Rodgers, Johnny Junior Harrison, Coy Dale Robinson, Jimmie Jesse Hicks, and George William Kelly, alleging that they committed various acts in connections with the derbies held in Swansea in July 2008 and April 2009. Peeler is a co-party to Lawson’s appeal, and, like Lawson, proceeded to a trial by jury. Gibert, Grooms, Benfield, and Hoover (collectively Gibert) entered conditional guilty pleas and have appealed their convictions in a companion case, United States v. Gibert, 677 F.3d 613 (4th Cir.2012). Lawson’s appeal and Gibert’s appeal proceeded on separate briefing schedules, but this Court consolidated the two cases for purposes of oral argument. Because the two cases raise certain distinct legal issues, we are concurrently issuing separate opinions for the two cases. . This indictment named Gene Audry Jeffcoat as Collins’ co-defendant. Jeffcoat entered" }, { "docid": "426849", "title": "", "text": "and that \"[t]o be convicted under this provision, ... a defendant need not know that the gambling business ... was violative of state law.” Id. Thus, Dyal’s reliance on O’Brien weakens her argument rather than strengthens it. . As discussed, a conviction under 18 U.S.C. § 1955 requires as an element of the offense that the defendant have violated a state or local gambling law. . A different rule is applicable when the conviction concerning one of the objects is set aside on factual, as opposed to legal, grounds. See Griffin v. United States, 502 U.S. 46, 56, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (holding that the Due Process Clause does not require a general guilty verdict on a multiprong conspiracy be set aside if the evidence is inadequate to support conviction as to one of the objects); Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) (\"when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner's indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged”) (emphasis added). . We observe that Collins individually challenges his sentence imposed by the district court, arguing that the district court erred by: (1) adding four levels to his guidelines-recommend sentence, U.S.S.G. § 3B1.1, upon concluding that he was an organizer or leader in the cockfighting venture and the illegal gambling business; and (2) declining to adjust Collins' sentence on the basis that he demonstrated acceptance of responsibility, U.S.S.G. § 3E1.1. In light of our conclusion that Collins' convictions for violating the animal fight ing statute cannot stand and that Collins is entitled to a new trial with respect to those charges, we need not reach Collins’ arguments concerning the sentence imposed by the district court." }, { "docid": "426825", "title": "", "text": "this case, as a matter of law, does not satisfy that obligation. We do not set aside a jury’s verdict lightly. However, the Sixth Amendment “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). We have held that “[n]o right touches more the heart of fairness in a trial.” Stockton, 852 F.2d at 743. In this case, we are unable to say that Juror 177’s use of Wikipedia did not violate the fundamental protections afforded by the Sixth Amendment. Accordingly, we vacate the appellants’ convictions under the animal fighting statute, and we award them a new trial with respect to those charges. VI. We next consider the challenges made by several of Scott Lawson’s co-defen dants, including Dyal, Sheri Hutto, Wayne Hutto, and Collins (collectively, Dyal), to their convictions for conspiracy to engage in an illegal gambling business, in violation of 18 U.S.C. § 371, and for operating an illegal gambling business, in violation of 18 U.S.C. § 1955 (collectively, the gambling convictions). The language of 18 U.S.C. § 1955 provides, in relevant part, that “[w]hoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both.” The statute defines an “illegal gambling business” in relevant part as a “gambling business which is a violation of the law of a State or political subdivision in which it is conducted.” 18 U.S.C. § 1955(b)(l)(i). Dyal raises two arguments in seeking to overturn the gambling convictions. First, Dyal contends that the district court erred in failing to charge the jury that Dyal must have known that her conduct constituted gambling under South Carolina law. Second, Dyal argues that the district court erred in instructing the jury that the South Carolina gambling statute, S.C.Code § 16-19-130, is violated when a person pays an entry fee to enter a contest of skill and the winnings depend on the number of entries. Both these arguments address" }, { "docid": "426780", "title": "", "text": "for the fights; and Collins’ alleged acts of handling money and ensuring that the rules were followed. With respect to violations of the animal fighting statute that did not involve a conspiracy, these indictments alleged generally that Dyal, Sheri Hutto, and Wayne Hutto sponsored and exhibited an animal, or aided and abetted individuals who sponsored an animal, in an animal fighting venture that occurred in July 2008 and April 2009, respectively. With respect to the illegal gambling statute charges, these indictments alleged that the nature of the derby, in which owners of fighting birds paid an entry fee to enter the birds in the derby and were eligible to win a “purse” if their birds won the most fights, constituted an illegal gambling operation in violation of South Carolina Code sections 16-19-10 and 16-19-130. The indictments stemmed from an undercover investigation conducted by the South Carolina Department of Natural Resources of a cockfighting organization based in Swansea. Undercover officers attended and made video-recordings of two cockfighting derbies, held in July 2008 and April 2009. During these derbies, several individuals, including individuals alleged to be part of the conspiracy at issue, entered birds into cockfighting matches. In these matches, the birds were “equipped” with gaffs or other sharp, metal objects attached to their legs. The birds fought their opponent to the death or at least until one of the birds was physically incapable of continuing to fight. After paying an entry fee to enter a bird in the derby, an owner was eligible to win the “purse,” the collective money put up by the entrants minus any amount retained by the organizers, if the owner’s bird won the most fights. The district court consolidated the indictments for these defendants and conducted a single trial, over Scott Lawson’s objection. During the course of the five-day trial, the parties called twenty-four witnesses, a majority of whom were representatives of companies outside South Carolina that manufactured items used in the cockfights. The government presented this testimony to help establish a nexus between the cockfighting activities at issue and interstate commerce, as required by the" }, { "docid": "426775", "title": "", "text": "Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the opinion, in which Judge GREGORY and Judge O’GRADY joined. OPINION BARBARA MILANO KEENAN, Circuit Judge: Scott Lawson and certain other defendants (collectively, Lawson) were convicted by a jury of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a) (the animal fighting statute), resulting from their participation in “game-fowl derbies,” otherwise known as “cockfighting.” The animal fighting statute prohibits, among other things, “sponsoring] or exhibiting] an animal in an animal fighting venture.” Id. The term “animal fighting venture” is defined in the statute, in relevant part, as “any event, in or affecting interstate or foreign commerce, that involves a fight conducted or to be conducted between at least 2 animals for purposes of sport, wagering, or entertainment.” 7 U.S.C. § 2156(g)(1). Several of the defendants in this case also were convicted of participating in, and conspiring to participate in, an illegal gambling business in violation of 18 U.S.C. § 1955 (the illegal gambling statute), with relation to activities that occurred during the “derbies.” Lawson raises numerous challenges to his convictions, arguing that: (1) the convictions for violating the animal fighting statute should be vacated because Congress lacks power under the Commerce Clause to prohibit the fighting of game-fowl; (2) the animal fighting statute is unconstitutional because the statute provides for different elements of proof in jurisdictions where animal fighting is legal; (3) the district court abused its discretion in consolidating Scott Lawson’s trial with the trials of his co-defendants; and (4) a juror’s misconduct in performing unauthorized research of the definition of an element of the offense on Wikipedia.org (Wikipedia), an “open access” internet encyclopedia, deprived him of his Sixth Amendment right to a fair trial. Additionally, the defendants convicted of violating the illegal gambling statute raise several challenges to those convictions. Upon our review of the parties’ arguments, we hold that the animal fighting statute is a constitutional exercise of Congress’ power under the Commerce Clause; that the provision of different elements of the crime in" }, { "docid": "426836", "title": "", "text": "on the other, the conviction will be reversed in accordance with the Supreme Court’s decision in Yates v. United States, 354 U.S. 298, 304-12, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). As we have explained, under Yates, “reversal is required when a case is submitted to a jury on two or more alternate theories, one of which is legally (as opposed to factually) inadequate, the jury returns a general verdict, and it is impossible to discern the basis on which the jury actually rested its verdict.” United States v. Moye, 454 F.3d 390, 400 n. 10 (4th Cir.2006) (en banc) (citing Yates, 354 U.S. at 311-12, 77 S.Ct. 1064.). Here, however, in contrast to the general verdict rendered in Yates, the verdict in the present case reveals that the jury had two separate bases for convicting the Dyal defendants of the conspiracy charges. Although the indictment alleged both objects in a single count, the jury’s verdict forms with respect to each of the Dyal defendants listed separate guilty verdicts for “Count 1 — Conspiracy (Animal Welfare Act: June 18, 2008 through April 18, 2009)” and “Count 1 — Conspiracy (illegal gambling business: May 2007 through April 18, 2009).” Thus, we are not confronted with a situation in which we are uncertain whether a jury’s verdict was solely attributable to an underlying conviction which we have set aside on legal grounds. Cf. Yates, 354 U.S. at 311-12, 77 S.Ct. 1064. Accordingly, the conspiracy convictions for the Dyal defendants are supported by a valid and independent legal basis that is apparent from the record, and we therefore affirm those convictions. VIII. In conclusion, we hold that the animal fighting statute is a constitutional exercise of Congress’ power under the Commerce Clause, and that the district court did not err in holding joint trials of Scott Lawson and his co-defendants. However, we hold that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute. Accordingly, we vacate all the defendants’ convictions for violating the animal fighting statute. We" }, { "docid": "426776", "title": "", "text": "gambling statute), with relation to activities that occurred during the “derbies.” Lawson raises numerous challenges to his convictions, arguing that: (1) the convictions for violating the animal fighting statute should be vacated because Congress lacks power under the Commerce Clause to prohibit the fighting of game-fowl; (2) the animal fighting statute is unconstitutional because the statute provides for different elements of proof in jurisdictions where animal fighting is legal; (3) the district court abused its discretion in consolidating Scott Lawson’s trial with the trials of his co-defendants; and (4) a juror’s misconduct in performing unauthorized research of the definition of an element of the offense on Wikipedia.org (Wikipedia), an “open access” internet encyclopedia, deprived him of his Sixth Amendment right to a fair trial. Additionally, the defendants convicted of violating the illegal gambling statute raise several challenges to those convictions. Upon our review of the parties’ arguments, we hold that the animal fighting statute is a constitutional exercise of Congress’ power under the Commerce Clause; that the provision of different elements of the crime in jurisdictions permitting animal fighting does not violate Lawson’s equal protection rights; and that the district court did not err in conducting Scott Lawson’s trial jointly with the trials of his codefendants. However, we hold that the juror’s misconduct violated Lawson’s right to a fair trial, and we therefore vacate the convictions for violating the animal fighting statute. For this reason, we also vacate the conspiracy convictions with respect to those defendants for which the conspiracy alleged related solely to the animal fighting activities. Additionally, we reject the challenges made by several of the defendants to the illegal gambling convictions, and we affirm the convictions relating to those offenses as well as the conspiracy convictions for which illegal gambling was one of the objects of the conspiracy alleged. I. In November 2009, a federal grand jury returned an indictment against Lawson and Leslie Wayne Peeler (the Lawson indictment), alleging one count of participating in a conspiracy to violate the Animal Welfare Act, in violation of 18 U.S.C. § 371, and one count of participating in, and/or" }, { "docid": "426833", "title": "", "text": "The Supreme Court of Nevada has held that an event involves a wager if the prize or premium is not a fixed amount but rather, as is the case here, depends upon the number of entrants. Las Vegas Hacienda, Inc. v. Gibson, 77 Nev. 25, 359 P.2d 85, 86 (1961) (“A prize or premium differs from a wager in that in the former, the person offering the same has no chance of gaining back the thing offered, but, if he abides by his offer, he must lose; whereas in the latter, each party interested therein has a chance of gain and takes a risk of loss.”); cf. id. at 87 (“The fact that each contestant is required to pay an entrance where the entrance fee does not specifically make up the purse or premium contested for does not convert the contest into a wager.”); see also Nevada v. GNLV Corp., 108 Nev. 456, 834 P.2d 411, 412-13 (1992) (citing Las Vegas Hacienda for proposition that “[a] prize differs from a wager in that the person offering the prize must permanently relinquish the prize upon performance of a specified act[, but] [i]n a wager, each party has a chance of gain and takes a risk of loss”) (internal quotation marks removed). Accordingly, based on these distinctions, we conclude that the district court did not err its instructions to the jury concerning the elements of S.C.Code § 16-19-130. For these reasons, we affirm Dyal’s convictions for violating the illegal gambling statute, 18 U.S.C. § 1955. VII. In view of our holdings vacating the convictions for violating the animal fighting statute but affirming the illegal gambling statute convictions, we find it necessary to determine whether the conspiracy convictions may stand. We first consider the conspiracy convictions relating to Scott Lawson and Peeler, who were not indicted or convicted for engaging in illegal gambling under 18 U.S.C. § 1955. Scott Lawson and Peeler were charged with “Conspiracy to Violate the Animal Welfare Act.” As alleged in the Lawson indictment, the only object of the conspiracy in which they allegedly participated was to “sponsor and" }, { "docid": "426777", "title": "", "text": "jurisdictions permitting animal fighting does not violate Lawson’s equal protection rights; and that the district court did not err in conducting Scott Lawson’s trial jointly with the trials of his codefendants. However, we hold that the juror’s misconduct violated Lawson’s right to a fair trial, and we therefore vacate the convictions for violating the animal fighting statute. For this reason, we also vacate the conspiracy convictions with respect to those defendants for which the conspiracy alleged related solely to the animal fighting activities. Additionally, we reject the challenges made by several of the defendants to the illegal gambling convictions, and we affirm the convictions relating to those offenses as well as the conspiracy convictions for which illegal gambling was one of the objects of the conspiracy alleged. I. In November 2009, a federal grand jury returned an indictment against Lawson and Leslie Wayne Peeler (the Lawson indictment), alleging one count of participating in a conspiracy to violate the Animal Welfare Act, in violation of 18 U.S.C. § 371, and one count of participating in, and/or aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2. With respect to the conspiracy charge, the Lawson indictment alleged that Lawson offered gaffs for sale and sharpened gaffs for individuals who entered birds into a cockfighting event held in Swansea, South Carolina in July 2008, and that Peeler served as a referee for a cockfighting event held in Swansea in April 2009. With respect to the violations of the animal fighting statute that did not involve an alleged conspiracy, the indictment alleged generally that Lawson and Peeler sponsored and exhibited an animal, or aided and abetted individuals who sponsored an animal, in an animal fighting venture that occurred in July 2008, and April 2009, respectively. The grand jury returned a separate indictment in November 2009 against Nancy Elizabeth Dyal, Sheri M. Hutto, and Wayne Hugh Hutto (the Dyal indictment), alleging one count of participating in a conspiracy to violate the Animal Welfare Act and to engage in an illegal gambling business, in violation of" }, { "docid": "206074", "title": "", "text": "fighting venture was in or affecting interstate commerce. Therefore, we affirm the defendants’ convictions. AFFIRMED . The indictment named as Gibert’s co-defendants Gerald Benfield, John Carlton Thurman Hoover, and Michael Monroe Grooms, each of whom are co-parties to Gibert’s appeal. The grand jury returned a separate indictment in December 2009 against Gene Audry Jeffcoat, on whose property the cockfighting derbies took place, charging him with one count of organizing, supervising, and participating in a conspiracy to violate the Animal Welfare Act, in violation of 18 U.S.C. § 371, two counts of participating in, and/or aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2, and two counts of conducting and supervising an illegal gambling business, in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 2. Jeffcoat is a named party to this appeal but, unlike the other appellants, Jeffcoat's guilty plea was not conditional, and the government asserts that he has waived the arguments presented by Gibert. However, the government has not asked that Jeffcoat's appeal be dismissed. James Morrow Collins, Jr. was also named as a defendant in Jeff-coat's indictment. Collins’ case proceeded to trial, and he was convicted by a jury. The Gibert indictment also named as defendants Michael T. Rodgers, Johnny Junior Harrison, Coy Dale Robinson, Jimmie Jesse Hicks, and George William Kelly, none of whom are parties to the present appeal, as well as Leslie Wayne Peeler and Scott Edward Lawson, who are each part of a separate class of defendants, including Collins, who proceeded to a jury trial and have appealed their convictions in a companion case, United States v. Lawson, 677 F.3d 629 (4th Cir.2012). Gibert's appeal and Lawson’s appeal proceeded on separate briefing schedules, but this Court consolidated the two cases for purposes of oral argument. Because the two cases raise certain distinct legal issues, and were based on different proceedings in the district court, we are concurrently issuing separate opinions for the two cases. . Coekfighting is illegal in South Carolina, and has been since 1887. See S.C.Code § 16-17-650." }, { "docid": "426837", "title": "", "text": "Welfare Act: June 18, 2008 through April 18, 2009)” and “Count 1 — Conspiracy (illegal gambling business: May 2007 through April 18, 2009).” Thus, we are not confronted with a situation in which we are uncertain whether a jury’s verdict was solely attributable to an underlying conviction which we have set aside on legal grounds. Cf. Yates, 354 U.S. at 311-12, 77 S.Ct. 1064. Accordingly, the conspiracy convictions for the Dyal defendants are supported by a valid and independent legal basis that is apparent from the record, and we therefore affirm those convictions. VIII. In conclusion, we hold that the animal fighting statute is a constitutional exercise of Congress’ power under the Commerce Clause, and that the district court did not err in holding joint trials of Scott Lawson and his co-defendants. However, we hold that the government has failed to demonstrate that a juror’s misconduct did not affect the verdict with respect to the violations of the animal fighting statute. Accordingly, we vacate all the defendants’ convictions for violating the animal fighting statute. We reject the challenges made by several of the defendants to their convictions for participating in an illegal gambling business, and we affirm the illegal gambling statute convictions of the Dyal defendants. We affirm the conspiracy convictions of the defendants who were charged with engaging in a conspiracy to violate both the Animal Welfare Act and to violate the illegal gambling business statute, but we vacate the conspiracy convictions of Scott Lawson and Peeler, whose conspiracy charges related solely to the Animal Welfare Act. We do not reach the merits of Collins’ arguments concerning his sentencing, nor do we address the remaining issues raised by the appellants. We remand this matter to the district court for further proceedings consistent with this opinion. AFFIRMED IN PART, VACATED IN PART, AND REMANDED . Lawson further argues that the district court erred in its rulings with respect to certain evidentiary matters and the instructions given to the jury on the animal fighting statute charges. In light of our holding, we do not reach those issues. We also do not" }, { "docid": "426778", "title": "", "text": "aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2. With respect to the conspiracy charge, the Lawson indictment alleged that Lawson offered gaffs for sale and sharpened gaffs for individuals who entered birds into a cockfighting event held in Swansea, South Carolina in July 2008, and that Peeler served as a referee for a cockfighting event held in Swansea in April 2009. With respect to the violations of the animal fighting statute that did not involve an alleged conspiracy, the indictment alleged generally that Lawson and Peeler sponsored and exhibited an animal, or aided and abetted individuals who sponsored an animal, in an animal fighting venture that occurred in July 2008, and April 2009, respectively. The grand jury returned a separate indictment in November 2009 against Nancy Elizabeth Dyal, Sheri M. Hutto, and Wayne Hugh Hutto (the Dyal indictment), alleging one count of participating in a conspiracy to violate the Animal Welfare Act and to engage in an illegal gambling business, in violation of 18 U.S.C. § 371, two counts of participating in, and/or aiding and abetting, an unlawful animal fighting venture, in violation of 7 U.S.C. § 2156(a)(1) and 18 U.S.C. § 2, and two counts of participating in, and/or aiding and abetting, an illegal gambling business, in violation of 18 U.S.C. § 1955 and 18 U.S.C. § 2. A similar indictment was returned against James Morrow Collins, Jr. in December 2009, alleging the same five counts as alleged in the Dyal indictment, based on Collins’ alleged role in the Swansea derbies held in July 2008 and April 2009. With respect to the conspiracy charge, these indictments alleged that Dyal, Sheri Hutto, Wayne Hutto, and Collins each helped organize the derbies held in Swansea in July 2008 and April 2009. These indictments were based on Sheri Hutto’s alleged acts of announcing the scheduled fighters; Dyal’s alleged acts of collecting admission fees, checking identifications for membership in the South Carolina Game-fowl Breeders Association, and selling such memberships during the derbies; Wayne Hutto’s alleged acts of serving as a referee" }, { "docid": "426847", "title": "", "text": "on video, and each defendant was described as either actively participating in the events, or aiding and abetting in their own way (as organizers, referees or gaff makers).” Gov't Br. at 51-52. . We note, however, that this Court has cited Wikipedia as a resource in three cases. See Brown v. Nucor Corp., 576 F.3d 149, 156 n. 9 (4th Cir.2009) (citing Wikipedia entry as a second authority for the term “standard deviation”); United States v. Smith, 275 Fed.Appx. 184, 185 n. 1 (4th Cir.2008) (unpublished) (quoting Wikipedia definition of a “peer-to-peer” computer network); Ordinola v. Hackman, 478 F.3d 588, 594 n. 4 (4th Cir.2007) (citing Wikipedia entry for definition of “calcium oxide”). . We address the conspiracy convictions relating to the animal fighting statute later in this opinion. Additionally, in light of our conclusion regarding the juror’s misconduct, we need not address Lawson’s other statutory and evidentiary challenges to his convictions relating to the Animal Welfare Act. These additional issues that we do not address include: (1) whether the district court erred in denying the defendants’ motion for judgment of acquittal based on the sufficiency of the evidence pertaining to the animal fighting venture’s connection to interstate commerce; (2) whether the district court erred in denying the defendants' request to instruct the jury that the government had the burden to prove that the defendants' activities had a substantial effect on interstate commerce for a conviction to obtain; and (3) whether the district court erred in admitting certain evidence relating to Lawson’s sale of gaffs. . Lawson and Peeler were not charged with participating in any gambling activities relating to the animal fighting venture. . Dyal originally contended that the district court improperly struck from the indictment the words \"willfully” and \"knowingly,” but has abandoned that facet of her argument. . Although Dyal cites United States v. O’Brien, 131 F.3d 1428, 1430 (10th Cir.1997) for the proposition that the government must show that a defendant knew that her act was one of participation in gambling, the court specifically stated in O'Brien that \"Section 1955 is not a specific intent statute,”" }, { "docid": "426783", "title": "", "text": "a monetary fine. The district court sentenced Dyal, Sheri Hutto, and Wayne Hutto each to a term of imprisonment of 12 months and one day. The district court determined that Collins was a leader or organizer of the conspiracy, adjusted his guidelines range accordingly, denied his motion to reduce his guidelines range for acceptance of responsibility, and sentenced him to a term of imprisonment of 21 months, in addition to a monetary fine. All defendants filed timely notices of appeal. II. Lawson first argues that his convictions for violating the animal fighting statute should be vacated because Congress lacks power under the Commerce Clause to prohibit the fighting of gamefowl. We addressed this identical argument in United States v. Gibert, 677 F.3d 613 (4th Cir.2012), a companion case that we consolidated with Lawson’s appeal, for which we are issuing an opinion concurrently with our decision in this case. In Gibert, we hold that the activity of animal fighting substantially affects interstate commerce and, thus, is a subject that Congress has the power to regulate under the Commerce Clause. For the reasons stated in our opinion in Gibert, we reject Lawson’s argument that 7 U.S.C. § 2156 is an unconstitutional exercise of Congress’ powers under the Commerce Clause. III. Lawson next argues that the animal fighting statute is unconstitutional because the statute provides for different elements of proof in different jurisdictions. We review this issue of law de novo. United States v. Cheek, 94 F.3d 136, 140 (4th Cir.1996). As Lawson correctly observes, under the animal fighting statute, if a defendant lives in a jurisdiction where gamefowl fighting is legal under the laws of that jurisdiction, the government must prove as an additional element of the offense that the defendant knew that at least one bird in the fighting venture traveled in interstate or foreign commerce. See 7 U.S.C. § 2156(a)(2). In contrast, if a defendant lives in a jurisdiction that prohibits game-fowl fighting, the government need only prove that the defendant sponsored or exhibited an animal in an animal fighting venture, irrespective whether the bird traveled in interstate or foreign" }, { "docid": "426835", "title": "", "text": "exhibit an animal in an animal fighting venture,” in violation of 7 U.S.C. § 2156(a)(1). Thus, the term “sponsor” was integral to the conspiracy conviction, and for the reasons discussed above, we are unable to conclude that “there is no reasonable possibility that the verdict was affected by” Juror 177’s misconduct in researching the definition of “sponsor” on Wikipedia. See Cheek, 94 F.3d at 142. Accordingly, we vacate Scott Lawson’s and Peeler’s conspiracy convictions, and award them a new trial with respect to that charge. The conspiracy charges and convictions for defendants Dyal, Sheri Hutto, Wayne Hutto, and Collins (the Dyal defendants) require us to engage in a different analysis. With respect to these defendants, the government framed its indictments as alleging a single conspiracy count for “Conspiracy to Violate the Animal Welfare Act and to Engage in an Illegal Gambling Business.” (Emphasis added.) The indictment thus alleges a multi-object conspiracy, and does so in the conjunctive. Ordinarily, when a conviction under a multi-object conspiracy indictment is supported on one ground but is legally inadequate on the other, the conviction will be reversed in accordance with the Supreme Court’s decision in Yates v. United States, 354 U.S. 298, 304-12, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). As we have explained, under Yates, “reversal is required when a case is submitted to a jury on two or more alternate theories, one of which is legally (as opposed to factually) inadequate, the jury returns a general verdict, and it is impossible to discern the basis on which the jury actually rested its verdict.” United States v. Moye, 454 F.3d 390, 400 n. 10 (4th Cir.2006) (en banc) (citing Yates, 354 U.S. at 311-12, 77 S.Ct. 1064.). Here, however, in contrast to the general verdict rendered in Yates, the verdict in the present case reveals that the jury had two separate bases for convicting the Dyal defendants of the conspiracy charges. Although the indictment alleged both objects in a single count, the jury’s verdict forms with respect to each of the Dyal defendants listed separate guilty verdicts for “Count 1 — Conspiracy (Animal" } ]

[ { "docid": "22896490", "title": "", "text": "cannot be questioned. American Brands, Inc. v. R. J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1357 (S.D.N.Y.1976); 1 R. Callmann, The Law of Unfair Competition, Trademarks and Monopolies §§ 19.1(a), at 631; 19.1(e), at 644; 19.2(a)(1), at 656; 19.-2(b)(1), at 665-67 (3d ed. 1967); cf. FTC v. Sterling Drug, Inc., 317 F.2d 669, 674-75 (2d Cir. 1963) (Federal Trade Commission suit). Were it otherwise, clever use of innuendo, indirect intimations, and ambiguous suggestions could shield the advertisement from scrutiny precisely when protection against such sophisticated deception is most needed. It is equally well established that the truth or falsity of the advertisement usually should be tested by the reactions of the public. 1 R. Callmann, The Law of Unfair Competition, Trademarks and Monopolies, supra, §§ 18.2(b), at 623; 19.2(a), at 655; 19.2(a)(1), at 656; 19.2(b)(1), at 665-69. Judge Lasker astutely articulated these legal principles in American Brands, Inc. v. R. J. Reynolds Co., supra, 413 F.Supp. at 1356-57 (emphasis added), a false advertising case involving ambiguous claims: Deceptive advertising or merchandising statements may be judged in various ways. If a statement is actually false, relief can be granted on the court’s own findings without reference to the reaction of the buyer or consumer of the product. The subject matter here is different. We are dealing not with statements which are literally or grammatically untrue .....Rather, we are asked to determine whether a statement acknowledged to be literally true and grammatically correct nevertheless has a tendency to mislead, confuse or deceive. As to such a proposition “the public’s reaction to [the] advertisement will be the starting point in any discussion of the likelihood of deception. . . . If an advertisement is designed to impress . customers, . . . the reaction of [that] group[s] [sic] will be determinative.” 1 Callmann: Unfair Competition, Trademarks & Monopolies at 19.2(a)(1) (3rd ed. 1967). A court may, of course, construe and parse the language of the advertisement. It may have personal reactions as to the defensibility or indefen-sibility of the deliberately manipulated words. It may conclude that the language is far from candid and" } ]

[ { "docid": "23068861", "title": "", "text": "protection were literally false by necessary implication. However, in assessing whether an advertisement is literally false, a court must analyze the message conveyed in full context. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. 597, 600 (D.Del.1989), aff'd, 902 F.2d 222 (3d Cir.1990); see also Gillette, No. 89 Civ. 3686 (KMW), slip op. at 9 (“[Defendant’s] claim of 'six times smoother,’ or any use of the word ‘smoother’ by [Defendant] in the context of its advertisements for shaving products, necessarily implies that the shave itself is smoother.”) (emphasis in original); Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731 (CSH), 1982 WL 121559, *2 (S.D.N.Y. June 9, 1982) (“[I]n determining facial falsity the court must view the face of the statement in its entirety, rather than examining the eyes, nose, and mouth separately and in isolation from each other”); Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987) (Representations made by “necessary implication” can constitute false advertising.). For example, the following message appeared in the advertisement litigated in the Cuisinarts case: Robot-Coupe: 21 Cuisinart: 0 When all 21 of the three-star restaurants in France’s Michelin Guide choose the same professional model food processor, somebody knows the score—shouldn’t you? Cuisinarts, 1982 WL 121559, *2. The court held this advertisement to be literally false, opining: The basic point is that the ad states, by necessary implication, that Robot-Coupe and Cuisinarts both build professional model food processors, and that French restaurateurs, presented with two existing alternatives, chose the Robot-Coupe model over the Cuisinarts model by the score of 21 to 0. I appreciate that the ad does not make that statement in haec verba. That is not necessary. Id. In like fashion, Pennzoil’s advertisements claim that viscosity breakdown leads to engine failure. Pennzoil then claims, albeit falsely, that it outperforms any leading motor oil against viscosity breakdown. The implication is that Pennzoil outperforms the other leading brands with respect to protecting against engine failure, because it outperforms them in protecting against viscosity breakdown, the cause of engine failure. Moreover, Pennzoil’s Executive Vice President of Marketing, William Welcher, conceded in his deposition" }, { "docid": "23064186", "title": "", "text": "name is literally false, a court must determine, first, the unambiguous claims made by the advertisement or product name, and second, whether those claims are false. Clorox Co. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 34 (1st Cir.2000). A “literally false” message may be either- explicit or “conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” Id. at 35. Regardless, only an unambiguous message can be literally false. “The greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the apparent conclusion, however, the less likely it is that a finding of literal falsity will be supported.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir.1998); see Warner-Lambert Co. v. Breathasure, Inc., 204 F.3d 87, 96 (3d Cir.2000); Castrol, 987 F.2d at 946; see also Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., 1982 WL 121559, at *2 (S.D.N.Y. June 9,1982). The District Court found that the MNTS product name and/or advertising conveyed two messages that are literally false by necessary implication: (1) that the MNTS product is superior to other products in providing nighttime relief, 129 F.Supp.2d at 360-61; and (2) that the product is specially formulated for nighttime relief, id. at 364. We Will discuss each of these messages in turn after briefly reviewing the cases where courts have found a false message necessarily implied from a product’s name or advertisement. [11] The common theme in these cases is a finding, based on a facial analysis of the product name or advertising, that the consumer will unavoidably receive a false message from the product’s name or advertising. When consumer deception can be determined by examining the challenged name or advertising on its face, the plaintiff is excused from the burden of demonstrating actual deception through the use of a consumer survey. For example, in Breathasure, the defendant claimed that its capsules would freshen breath when swallowed, and that they were more effective at freshening breath than other products like" }, { "docid": "15920814", "title": "", "text": "the statements actually misled consumers. See American Council, 185 F.3d at 614; Johnson & Johnson, Inc. v. GAC Int’l, Inc., 862 F.2d 975, 977 (2d Cir.1988); U-Haul Inter’l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1040 (9th Cir.1986). On the other hand, if the statements at issue are either ambiguous or true but misleading, the plaintiff must present evidence of actual deception. See American Council, 185 F.3d at 616; Smithkline, 960 F.2d at 297 (stating that when a “plaintiffs theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse”); Avila, 84 F.3d at 227. The plaintiff may not rely on the judge or the jury to determine, “based solely upon his or her own intuitive reaction, whether the advertisement is deceptive.” Smithkline, 960 F.2d at 297. Instead, proof of actual deception requires proof that “consumers were actually deceived by the defendant’s ambiguous or true-but-misleading statements.” American Council, 185 F.3d at 616; see also Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 386 (2d Cir.1986)(stating that the plaintiff's claim fails due to its failure to introduce evidence establishing that the public was actually deceived by the statements at issue). (b) The type of evidence needed to prove materiality also varies depending on what type of recovery the plaintiff seeks. Plaintiffs looking to recover monetary damages for false or misleading advertising that is not literally false must prove actual deception. See Balance Dynamics Corp. v. Schmitt Ind., 204 F.3d 683, 690 (6th Cir.2000); Resource Developers, 926 F.2d at 139. Plaintiffs attempting to prove actual deception have to produce evidence of actual consumer reaction to the challenged advertising or surveys showing that a substantial number of consumers were actually misled by the advertisements. See, e.g., PPX Enters., Inc. v. Audiofidelity Enters., Inc., 818 F.2d 266, 271 (2d Cir.1987) (“Actual consumer confusion often is demonstrated through the use of direct evidence, e.g., testimony from members of the buying public, as well as through circumstantial evidence, e.g., consumer surveys or consumer reaction tests.”). Plaintiffs" }, { "docid": "2605485", "title": "", "text": "Nike, Inc. v. Rubber Mfrs. Ass’n, Inc., 509 F.Supp. 919, 926 (S.D.N.Y.1981)). Furthermore, when public health is at issue, as in false drug advertising, the unclean hands defense must be “judiciously applied.” McNeilab, 501 F.Supp. at 539. Bracco’s alleged misconduct, even if taken as true, was, done for largely defensive purposes, limited in scope and duration; it does not create an unclean hands defense. c. Literal Falsity In Novartis, the Third Circuit clearly set out the framework for making a determination of literal falsity: In analyzing whether an advertisement or product name is literally false, a court must determine, first, the unambiguous claims made by the advertisement or product name, and second, whether those claims are false. Clorox Co. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 34 (1st Cir.2000). A “literally false” message may be either explicit or “conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” Regardless, only an unambiguous message can be literally false. “The greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the apparent conclusion, however, the less likely it is that a finding of literal falsity will be supported.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir.1998); see WarnerLambert Co. v. BreathAsure, Inc., 204 F.3d 87, 96 (3d Cir.2000); Castrol, 987 F.2d at 946; see also Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., [No. 81-731,] 1982 WL 121559, at *2 (S.D.N.Y. June 9, 1982). Novartis, 290 F.3d at 586-87. Furthermore, when determining whether a claim is literally false, audience sophistication is irrelevant. JR Tobacco of America, Inc. v. Davidoff of Geneva (CT), Inc., 957 F.Supp. 426, 432 (S.D.N.Y.1997) (citing Merck Consumer Pharmaceuticals, 960 F.2d at 298 (listing factors to be used in determining whether an advertisement is likely to mislead or confuse public, not literal falsity)); see Morgenstern Chem. Co. v. G.D. Searle & Co., 253 F.2d 390, 393-94 (3d Cir.1958) (declining to take into account customer sophistication in particular industry when determining" }, { "docid": "6433889", "title": "", "text": "the adverse effects of Jartran advertisements directed at U-Haul. 46. Jartran’s 1979-1980 advertising campaign cost was approximately $6,000,-000. CONCLUSIONS OF LAW 1. This Court has subject matter jurisdiction. 15 U.S.C. § 1121 and 28 U.S.C. § 1338(a). See U-Haul International, Inc. v. Jartran, Inc., 681 F.2d 1159 (9th Cir. 1982). The Court has jurisdiction over plaintiff’s pendent claims. 28 U.S.C. § 1338(b); 28 U.S.C. § 1331. 2. Plaintiff U-Haul International, Inc. is a real party in interest and has standing to sue for damages sustained by itself and other entities comprising the U-Haul System. 3. Under the Lanham Act, a false representation of fact may be an actual false statement; an affirmatively misleading statement; a partially correct statement; a statement which is untrue as a result of a failure to disclose information; or a statement which is literally true but conveys a false impression through innuendo, indirect intimation or ambiguous suggestion which has a tendency to mislead or deceive the consumer. 4. A false representation must be about Jartran’s equipment, either standing alone or in comparison to U-Haul’s equipment. The advertisement need not directly or explicitly compare U-Haul and Jartran to be a comparative advertisement. It is sufficient that a substantial segment of the buying public understands that the ad compares the equipment of the two competitors. 5. Consumer reliance as an element of a claim for damages under Section 43(a) of the Lanham Act, can be shown by direct evidence such as testimony from individual members of the buying public, or by circumstantial evidence, such as surveys of the buying public. 6. In this case the buying public for purposes of the actual deception/reliance requirement of the Lanham Act consists of those persons who have been in the market to move or who are planning to move in the near future. 7. To prove actual deception of the buying public, plaintiff in this case need only show by competent surveys that the number of members of the buying public who are deceived, is not insignificant. 8. The target market respondents in the FRC and BRC reports (all adults) and" }, { "docid": "23052714", "title": "", "text": "1125(a). To obtain permanent injunctive relief against a false or mislead ing advertising claim pursuant to section 43(a), a plaintiff must demonstrate by a preponderance of the evidence that an advertisement is either literally false or that the advertisement, though literally true, is likely to mislead and confuse consumers. See Johnson & Johnson v. GAC Int’l, Inc., 862 F.2d 975, 977 (2d Cir.1988); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d Cir.1982). Where the advertising claim is shown to be literally false, the court may enjoin the use of the claim “without reference to the advertisement’s impact on the buying public.” Coca-Cola, 690 F.2d at 317; see also PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d 266, 272 (2d Cir.1987) (citation omitted); American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 165 (2d Cir.1978) (citation omitted). Additionally, a plaintiff must show that it will suffer irreparable harm absent the injunction. See, e.g., Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1195 (S.D.N.Y.1987). In the instant ease, Bristol-Myers does not dispute that if McNeil sustains its burden of proving that Bristol-Myers’ “works better” claim is literally false, McNeil will have established the requisite harm. See McNeilab, Inc. v. American Home Products Corp., 848 F.2d 34, 38 (2d Cir.1988) (where the challenged advertisement directly, but falsely, proclaims the superiority of defendant’s product over plaintiff’s, irreparable harm may be presumed). Nevertheless, Bristol-Myers contends that McNeil has failed to meet its burden of proving the falsity of Bristol-Myers’ “works better” claim. To prove that an advertising claim is literally false, a plaintiff must do more than show that the tests supporting the challenged claim are unpersuasive. Procter & Gamble Co. v. Chesebrough-Pond’s Inc., 747 F.2d 114,119 (2d Cir.1984). Rather, the plaintiff must demonstrate that such tests are “not sufficiently reliable to permit one to conclude with reasonable certainty that they established” the claim made. Id.; see also Alpo Petfoods, Inc. v. Ralston Purina Co., 720 F.Supp. 194, 213 (D.D.C.1989) (“Representations found to be unsupported by accepted authority or research or which are contradicted by prevailing authority or research," }, { "docid": "23064185", "title": "", "text": "misleading representation of fact which ... (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. § 1125(a). Liability arises if the commercial message or statement is either (1) literally false or (2) literally true or ambiguous, but has the tendency to deceive consumers. Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 943 (3d Cir.1993) (“a plaintiff must prove either literal falsity or consumer confusion, but not both”) (emphasis in original). We will address Novartis’ allegations under each theory. 1. Did J & J Disseminate Literally False Claims Re “Mylanta Night Time Strength”? If a plaintiff proves that the challenged commercial claims are “literally false,” a court may grant relief without considering whether the buying public was actually misled. Rorer, 19 F.3d at 129. In analyzing whether an advertisement or product name is literally false, a court must determine, first, the unambiguous claims made by the advertisement or product name, and second, whether those claims are false. Clorox Co. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 34 (1st Cir.2000). A “literally false” message may be either- explicit or “conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated.” Id. at 35. Regardless, only an unambiguous message can be literally false. “The greater the degree to which a message relies upon the viewer or consumer to integrate its components and draw the apparent conclusion, however, the less likely it is that a finding of literal falsity will be supported.” United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1181 (8th Cir.1998); see Warner-Lambert Co. v. Breathasure, Inc., 204 F.3d 87, 96 (3d Cir.2000); Castrol, 987 F.2d at 946; see also Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., 1982 WL 121559, at *2 (S.D.N.Y. June 9,1982). The District Court found that" }, { "docid": "22177779", "title": "", "text": "as the result of the foregoing either by direct diversion of sales from itself to defendant, or by lessening of the good will which its products enjoy with the buying public. Id. (footnote omitted). See also Oil Heat Inst. of Oregon v. Northwest Natural Gas, 708 F.Supp. 1118, 1121 (D.Or.1988). The controversy in this case centers around elements one and two. NCC makes one overt statement about its own services in its advertisement: “[W]e’re the low cost commercial collection experts.” However, a false advertising cause of action under the Act is not limited to literal falsehoods; it extends to false representations made by implication or innuendo. In American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160 (2d Cir.1978), the Second Circuit stated: That Section 43(a) of the Lanham Act encompasses more than literal falsehoods cannot be questioned. Were it otherwise, clever use of innuendo, indirect intimations, and ambiguous suggestions could shield the advertisement from scrutiny precisely when protection against such sophisticated deception is most needed. Id. at 165 (citations omitted). See also U-Haul Int'l, Inc. v. Jartran, Inc., 522 F.Supp. 1238, 1247 (D.Ariz.1981), aff'd, 681 F.2d 1159 (9th Cir.1982); cf. American Home Products Corp. v. Federal Trade Commission, 695 F.2d 681, 687 (3d Cir.1982). Therefore, Cook may allege — and we are willing to accept as true for the purposes of this appeal — that the advertisement as a whole can be read as implying that NCC offers the same collection services as lawyers at a lower or more competitive price. The dispositive issue, however, is whether this alleged misrepresentation is merely “puffery,” as the lower court found, and thus not actionable under the act, or whether it is a statement of fact which has the tendency to deceive the reader. Cook does not refute the contention that puffing immunizes an advertisement from liability under the Lanham Act. Indeed, there is much support for this contention. See Stiffel Co. v. Westwood Lighting Group, 658 F.Supp. 1103, 1115 (D.N.J.1987); Toro Co. v. Textron, Inc., 499 F.Supp. 241, 253 n. 23 (D.Del.1980); Smith-Victor Corp. v. Sylvania Electric Products, Inc., 242" }, { "docid": "23680770", "title": "", "text": "or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods travelled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc. U.S. Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 922-23 (3d Cir.1990), cert. denied, 498 U.S. 816, 111 S.Ct. 58, 112 L.Ed.2d 33 (1990) (quoting Max Daetwyler Corp. v. Input Graphics, Inc., 545 F.Supp. 165, 171 (E.D.Pa.1982)). A plaintiff must prove that the claim is false or misleading, not merely that it is unsubstantiated. San-doz, 902 F.2d at 228. If a plaintiff proves a challenged claim is literally false, a court may grant relief without considering whether the buying public was misled. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. 597, 600 (D.Del.1989), aff'd, 902 F.2d 222 (3d Cir.1990). A determination of literal falsity rests on an analysis of the message in context. Id. If a plaintiff does not prove the claim to be literally false, he must prove that it is deceptive or misleading, which depends on the message that is conveyed to consumers. U.S. Healthcare, 898 F.2d at 922. Public reaction is the measure of a commercial’s impact. Sandoz, 902 F.2d at 228-29; American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1357 (S.D.N.Y.1976). As the district court noted, the success of the claim usually turns on the persuasiveness of a consumer survey. Slip op. at 23 (citing Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Smithkline Beecham Corp., No. 91 Civ. 0960, 1991 WL 206312 (S.D.N.Y., Oct. 1, 1991), aff'd 960 F.2d 294 (2d Cir.1992); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d Cir.1982)). The factfinder must determine whether the public was, in fact, misled. Drawing a distinction between the FTC plaintiff and the Lanham Act plaintiff, this court held in Sandoz that the FTC plaintiff could rely on its own determination of deeep-tiveness, but the Lanham Act plaintiff bears" }, { "docid": "10681460", "title": "", "text": "the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act. 15 U.S.C. § 1125(a)(1). “Congress enacted section 43(a) of the Lanham Act ‘to stop the kind of unfair competition that consists of lying about goods or services.’ ” Castrol v. Pennzoil, 987 F.2d 939, 941 (3d Cir.1993) (quoting U-Haul v. Jartran, 681 F.2d 1159, 1162 (9th Cir.1982)). A plaintiff may establish a violation of this section by demonstrating either that: 1) the advertising was literally false; .or 2) the advertising was literally true or ambiguous but “given the merchandising context, it nevertheless is likely to mislead and confuse consumers.” Id. at 943 (quoting Johnson & Johnson v. (JAC, 862 F.2d 975, 977 (2d Cir.1988)). Thus, a plaintiff must prove “either literal falsity or consumer confusion, but not both.” Id. (citations omitted). Diamond argues that Safelite CSRs: 1) falsely conveyed in their greetings that they were representatives of the insurance companies; and 2) falsely warned policyholders that they could not guarantee Diamond’s pricing or service after it left the network. Safelite contends that the greetings and warnings were literally true and Diamond has produced insufficient evidence to create a genuine issue of material fact as to consumer deception. 1. Literal Falsity The test for literal falsity is simple: “[i]f a defendant’s claim is untrue, it must be deemed literally false.” Castrol, 987 F.2d at 944. Even if the advertiser has a reasonable basis to support the truth of the advertisement, it will be liable if the statement is untrue. Id. “In analyzing whether an advertisement or product name is literally false, a court must determine, first, the unambiguous claims made by the advertisement or product name, and second, whether those claims are false.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm." }, { "docid": "19706737", "title": "", "text": "burden in this regard rested on U-Haul, and it could not sustain its burden of persuasion by its repeated assertions (and proof) that Jartran had done little, if any, testing of Jartran trucks or trailers, and no comparative testing of U-Haul products. The correct rule in this regard was stated as follows in Toro, supra, 499 F.Supp. at 253: I cannot accept Toro’s argument that it is entitled to prevail on a claim under Section 43(a) simply by showing that a defendant’s advertising claim is unsubstantiated. The plain language of Section 43(a), which prohibits false rather than unsubstantiated representations, requires that a plaintiff establish not merely that the defendant’s claims lack substantiation but also that it is false or deceptive. JARTRAN STATEMENTS WHICH HAVE A TENDENCY TO MISLEAD, CONFUSE OR DECEIVE Á Here, we are as stated in McNeilab, supra, . . . dealing not with statements which are literally or grammatically untrue .... Rather, we are asked to determine whether a statement acknowledged to be literally true and grammatically correct nevertheless has a tendency to mislead, confuse or deceive.... 501 F.Supp. at 524. In this situation, McNeilab cited American Brands, Inc. v. R. J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1356-57 (S.D.N.Y.1976) in holding that: The public reaction to [the] advertisement will be the starting point in any discussion of the likelihood of deception ... If an advertisement is designed to ■impress . . . customers . . . the reaction of [that] [group] will be determinative. McNeilab went on to discuss the plaintiff’s burden in demonstrating “whether true statements are misleading or deceptive despite their truthfulness”, noting that: [i]t is not enough to place the statements alone before the Court: The plaintiff must adduce evidence (usually in the form of market research or consumer surveys showing how the statements are perceived by those who are exposed to them. This does not mean that the conclusions of market researchers and other expert witnesses are binding on the court.. . . Though the court’s own reaction to the advertisements is not determinative, as finder of fact it is obliged to" }, { "docid": "22224122", "title": "", "text": "(2d Cir.1984). “Rather, the plaintiff must demonstrate that such tests ‘are not sufficiently reliable to permit one to conclude with reasonable certainty that they established’ the claim made.” McNeil-P.C.C., 938 F.2d at 1549 (quoting Procter & Gamble, 747 F.2d at 119). A plaintiff may meet this burden either by attacking the validity of the defendant’s tests directly or by showing that the defendant’s tests are contradicted or unsupported by other scientific tests. Id.; see also Castrol, Inc. v. Quaker State Corp., 977 F.2d 57, 62-63 (2d Cir.1992) (“Quaker State”) (distinguishing product superiority claim not based on testing, which must be proven false by affirmative evidence, from product superiority claim explicitly or implicitly based on tests or studies, which may be proven false by showing that the tests did not establish the proposition for which they were cited). Moreover, “[i]f the plaintiff can show that the tests, even if reliable, do not establish the proposition asserted by the defendant, the plaintiff has obviously met its burden” of demonstrating literal falsity. Quaker State, 977 F.2d at 63. When evaluating whether an advertising claim is literally false, the claim must always be analyzed in its full context. Castrol, 987 F.2d at 946; American Home Products Corp. v. F.T.C., 695 F.2d 681, 687 (3d Cir.1982); see Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731(CSH), 1982 WL 121559, *2 (S.D.N.Y. June 9, 1982) (“[I]n determining facial falsity the court must view the face of the statement in its entirety, rather than examining the eyes, nose, and mouth separately and in isolation from each other.”). Thus courts have held that a claim can be literally false “by necessary implication.” Castrol 987 F.2d at 946; Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987). B. Literally True But Misleading Even if an advertisement is not literally false, relief is available under Lanham Act § 43(a) if it can be shown that the advertisement has misled, confused, or deceived the consuming public. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228-29 (3d Cir.1990); American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160," }, { "docid": "22224124", "title": "", "text": "165-66 (2d Cir.1978); U-Haul Int’l, Inc. v. Jartran, Inc., 522 F.Supp. 1238, 1248-49 (D.Ariz.1981) (“U-Haul I”), aff'd, 681 F.2d 1159 (9th Cir.1982) (“U-Haul II”). Reactions of the public are typically tested through the use of consumer surveys. E.g. American Home Products, 577 F.2d at 166-68; U-Haul I, 522 F.Supp. at 1249. III. Admissibility of Plaintiffs’ Expert Testimony The bulk of Plaintiffs’ evidence consists of declarations, and deposition testimony from three expert witnesses: (1) M.C. Engelke, an expert in turfgrass breeding and development, whose testimony was proffered to demonstrate the unreliability of the Lede-boer and Spaulding tests and the falsity of Defendants’ product superiority claims; (2) Ken Struman, a consumer survey expert whose testimony was proffered to demonstrate how Defendants’ advertisements mislead the consuming public; and (3) Michael Wagner, an economics expert whose testimony was proffered to demonstrate the damage Defendants’ advertisements caused to South-land’s business. In the district court, Defendants challenged the admissibility of these experts’ testimony on relevancy grounds. On appeal, they raise additional challenges based on the reliability requirement enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591-99, 113 S.Ct. 2786, 2796-99, 125 L.Ed.2d 469 (1993) (“Daubert /”) (holding that a court analyzing the admissibility of scientific opinion testimony under Federal Rule of Evidence 702 must ensure that the testimony is based on scientifically valid principles and is relevant to the facts in issue). Before analyzing the merits of Defendants’ summary judgment motion, we consider the admissibility of the three experts’ testimony. We review the district court’s decision to exclude testimony under an abuse of discretion standard. Maffei v. Northern Ins. Co. of New York, 12 F.3d 892, 897 (9th Cir.1993). A. M.C. Engelke To demonstrate the unreliability of the Ledeboer and Spaulding tests and the falsity of Defendants’ product superiority claims, Plaintiffs proffer the testimony of M.C. En-gelke. Dr. Engelke, an Associate Professor of Turfgrass Breeding, Genetics, and Management in the Texas A & M University system, criticized the Ledeboer and Spauld-ing tests because they collected all of their data during the spring season following a fall planting. Therefore, according to Engelke, the data" }, { "docid": "23155294", "title": "", "text": "consumers. See McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir.1991); Johnson & Johnson v. GAC Int'l, Inc., 862 F.2d 975, 977 (2d Cir.1988); Coca-Cola Co. v. Tropicana Products Inc., 690 F.2d 312, 317 (2d Cir.1982); American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 165 (2d Cir.1978). Where, as here, a plaintiff’s theory of recovery is premised upon a claim of implied falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged commercials tend to mislead or confuse consumers. See GAC Int'l, Inc., 862 F.2d at 977; American Home Products Corp., 571 F.2d at 165; Upjohn Co. v. American Home Products Corp., 598 F.Supp. 550, 556 (S.D.N.Y.1984). It is not for the judge to determine, based solely upon his or her own intuitive reaction, whether the advertisement is deceptive. Rather, as we have reiterated in the past, “[t]he question in such cases is — what does the person to whom the advertisement is addressed find to be the mes sage?” American Home Products Corp., 577 F.2d at 166 (quoting American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. 1352, 1357 (S.D.N.Y.1976)). That is, what does the public perceive the message to be? The answer to this question is pivotal because, where the advertisement is literally true, it is often the only measure by which a court can determine whether a commercial’s net communicative effect is misleading. Thus, the success of a plaintiffs implied falsity claim usually turns on the persuasiveness of a consumer survey. See Coca-Cola Co., 690 F.2d at 317 (“When the challenged advertisement is implicitly rather than explicitly false, its tendency to violate the Lanham Act by misleading, confusing or deceiving should be tested by public reaction.”); American Home Products Corp., 577 F.2d at 165; Upjohn Co., supra. Where a district court’s factual findings regarding an advertisement’s tendency to mislead or confuse consumers are based “on its analysis of ... surveys [and] on the corroborating evidence of the market research experts,” those findings are entitled to the clearly erroneous standard of review. American Home Products Corp., 577 F.2d at 167." }, { "docid": "23068860", "title": "", "text": "obvious conclusion that Pennzoil is superior to the other leading brands in protection against engine problems. Therefore, Pennzoil did, by implication, compare its effectiveness against engine wear to that of its competitors, and the court’s finding did not constitute a rewriting of the commercials, as claimed by Pennzoil. Moreover, there need not be a direct comparison to a competitor for a statement to be actionable under the Lanham Act. See American Home Prods. Corp. v. Johnson & Johnson, 654 F.Supp. 568 (S.D.N.Y.1987) (holding that the claim that Tylenol gives unsurpassed relief is not puffery despite the lack of a direct comparison); Gillette, No. 89 Civ 3686 (KMW), slip op. at 42 (the claim “Smoothest, most comfortable shave” is not puffery). Under Pennzoil’s logic, as Castrol points out, the Ford Motor Company could claim that its Pinto model offers the best rear end protection as long as no competitor is specifically named. Such a result is impractical and illogical. Second, Pennzoil asserts that the district court erred in holding that the claims relating to better engine protection were literally false by necessary implication. However, in assessing whether an advertisement is literally false, a court must analyze the message conveyed in full context. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 735 F.Supp. 597, 600 (D.Del.1989), aff'd, 902 F.2d 222 (3d Cir.1990); see also Gillette, No. 89 Civ. 3686 (KMW), slip op. at 9 (“[Defendant’s] claim of 'six times smoother,’ or any use of the word ‘smoother’ by [Defendant] in the context of its advertisements for shaving products, necessarily implies that the shave itself is smoother.”) (emphasis in original); Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731 (CSH), 1982 WL 121559, *2 (S.D.N.Y. June 9, 1982) (“[I]n determining facial falsity the court must view the face of the statement in its entirety, rather than examining the eyes, nose, and mouth separately and in isolation from each other”); Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987) (Representations made by “necessary implication” can constitute false advertising.). For example, the following message appeared in the advertisement litigated in the Cuisinarts case: Robot-Coupe: 21" }, { "docid": "22224123", "title": "", "text": "When evaluating whether an advertising claim is literally false, the claim must always be analyzed in its full context. Castrol, 987 F.2d at 946; American Home Products Corp. v. F.T.C., 695 F.2d 681, 687 (3d Cir.1982); see Cuisinarts, Inc. v. Robot-Coupe Int’l Corp., No. 81 CIV 731(CSH), 1982 WL 121559, *2 (S.D.N.Y. June 9, 1982) (“[I]n determining facial falsity the court must view the face of the statement in its entirety, rather than examining the eyes, nose, and mouth separately and in isolation from each other.”). Thus courts have held that a claim can be literally false “by necessary implication.” Castrol 987 F.2d at 946; Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1193-94 (S.D.N.Y.1987). B. Literally True But Misleading Even if an advertisement is not literally false, relief is available under Lanham Act § 43(a) if it can be shown that the advertisement has misled, confused, or deceived the consuming public. Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228-29 (3d Cir.1990); American Home Products Corp. v. Johnson & Johnson, 577 F.2d 160, 165-66 (2d Cir.1978); U-Haul Int’l, Inc. v. Jartran, Inc., 522 F.Supp. 1238, 1248-49 (D.Ariz.1981) (“U-Haul I”), aff'd, 681 F.2d 1159 (9th Cir.1982) (“U-Haul II”). Reactions of the public are typically tested through the use of consumer surveys. E.g. American Home Products, 577 F.2d at 166-68; U-Haul I, 522 F.Supp. at 1249. III. Admissibility of Plaintiffs’ Expert Testimony The bulk of Plaintiffs’ evidence consists of declarations, and deposition testimony from three expert witnesses: (1) M.C. Engelke, an expert in turfgrass breeding and development, whose testimony was proffered to demonstrate the unreliability of the Lede-boer and Spaulding tests and the falsity of Defendants’ product superiority claims; (2) Ken Struman, a consumer survey expert whose testimony was proffered to demonstrate how Defendants’ advertisements mislead the consuming public; and (3) Michael Wagner, an economics expert whose testimony was proffered to demonstrate the damage Defendants’ advertisements caused to South-land’s business. In the district court, Defendants challenged the admissibility of these experts’ testimony on relevancy grounds. On appeal, they raise additional challenges based on the reliability requirement enunciated in Daubert v." }, { "docid": "9336844", "title": "", "text": "Gillette’s wet-shaving products, particularly Gillette’s Sensor and its SensorExcel. Gillette contends that No-relco’s advertisements for the Reflex Action are explicit messages that equate wet shaving with things like having one’s face burned by a flame, bitten by a sharp-toothed animal or stung by a snake or a swarm of bees. In short, Gillette says, Norelco’s advertisements portray wet-shaving as a dangerous or painful experience, and because they do, the advertisements are literally false. An initial, but important, point must be made here. Section 43(a) makes actionable statements that are either false or misleading. The method of proof varies, however, depending on whether the charge is that a statement is false on the one hand, or that it is misleading, on the other. If the asser tion is made that a statement is literally false, then there is no need for the court to consider consumer survey evidence. See Associated Dry Goods, 799 F.2d at 15 (“[A] court may grant relief on the basis of its own finding without reference to consumer reaction to the product when the defendant’s representations are actually false.”); McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir.1991) (“Where the advertising claim is shown to be literally false, the court may enjoin the use of the claim without reference to the advertisement’s impact on the buying public.”) (quotation and citation omitted). However, “where the advertisements are not literally false, plaintiff bears the burden of proving actual deception by a preponderance of the evidence. Hence, it cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react.” Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228-29 (3d Cir.1990) (emphasis in original) (citation omitted). The showing is usually made by means of a consumer reaction survey. See Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. Smith-kline Beecham Corp., 960 F.2d 294, 298 (2d Cir.1992) (“[T]he success of a plaintiffs implied falsity claim usually turns on the persuasiveness of a consumer survey.”); L & F Products v. Procter & Gamble, Co., 845 F.Supp. 984, 995-1000 (S.D.N.Y.1994) (analyzing surveys), aff'd" }, { "docid": "9336845", "title": "", "text": "when the defendant’s representations are actually false.”); McNeil-P.C.C., Inc. v. Bristol-Myers Squibb Co., 938 F.2d 1544, 1549 (2d Cir.1991) (“Where the advertising claim is shown to be literally false, the court may enjoin the use of the claim without reference to the advertisement’s impact on the buying public.”) (quotation and citation omitted). However, “where the advertisements are not literally false, plaintiff bears the burden of proving actual deception by a preponderance of the evidence. Hence, it cannot obtain relief by arguing how consumers could react; it must show how consumers actually do react.” Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222, 228-29 (3d Cir.1990) (emphasis in original) (citation omitted). The showing is usually made by means of a consumer reaction survey. See Johnson & Johnson * Merck Consumer Pharmaceuticals Co. v. Smith-kline Beecham Corp., 960 F.2d 294, 298 (2d Cir.1992) (“[T]he success of a plaintiffs implied falsity claim usually turns on the persuasiveness of a consumer survey.”); L & F Products v. Procter & Gamble, Co., 845 F.Supp. 984, 995-1000 (S.D.N.Y.1994) (analyzing surveys), aff'd 45 F.3d 709 (2d Cir.1995). A plaintiff has carried its burden to show that consumers are confused if a substantial, or not insubstantial, nuihber of consumers are shown to hold the confused view. See, e.g., Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Rhone-Poulenc Rorer Pharmaceuticals, Inc., 19 F.3d 125, 134 n. 14 (3rd Cir.1994) (twenty percent confused is sufficient); Smithkline Beecham, 960 F.2d at 298 (plaintiff must “demonstrate that a statistically significant part of the commercial audience holds the false belief allegedly communicated”); Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 317 (2d Cir.1982) (sufficient “that a not insubstantial number of consumers were clearly misled”). Gillette contends that the visual images in Norelco’s advertisements send a message that is “false on its face” (another interesting phrase in the context of this case), so that consumer reaction evidence is not required. In the alternative, Gillette argues that, at the very least, the gross exaggerations made in the visual images in Norelco’s advertisé-ments are misleading. In connection with this latter point, Gillette has submitted a consumer" }, { "docid": "22224145", "title": "", "text": "allow monetary damages even without a showing of actual consumer confusion. See, e.g., PPX Enterprises v. Audiofidelity Enterprises, 818 F.2d 266, 272-73 (2d Cir. 1987) (stating that “the distinction drawn between stating a claim for injunctive relief and establishing entitlement to damages has less relevance in the context of false advertising” and holding that if an advertising statement is actually false, monetary relief can be awarded even without reference to consumer confusion). In fact, for false comparative advertising claims, this circuit has held that “[publication of deliberately false comparative claims gives rise to a presumption of actual deception and reliance.” U-Haul Int'l, Inc. v. Jartran, Inc., 793 F.2d 1034, 1040-41 (9th Cir.1986) (“U-Haul IV”) (quoting U-Haul Int'l, Inc. v. Jartran, Inc., 601 F.Supp. 1140, 1149 (D.Ariz.1984) (“U-Haul III ”)). The U-Haul IV court reasoned: The expenditure by a competitor of substantial funds in an effort to deceive consumers and influence ' their purchasing decisions justifies the existence of- a presumption that consumers are, in fact, being deceived. He who has attempted to deceive should not complain when required to bear the burden of rebutting a presumption that he succeeded. U-Haul IV, 793 F.2d at 1041. Because a reasonable jury could conclude, based on the evidence submitted by Plaintiffs, that Defendants comparative advertisement claims were deliberately false within the meaning of § 43(a), Plaintiffs may be entitled to a presumption of actual consumer deception and reliance, and would therefore be entitled to appropriate monetary relief unless Defendants could rebut the presumption. Even if Plaintiffs were not entitled to a presumption of actual consumer deception and reliance, the consumer survey testimony of Struman and the market analysis testimony of Wagner provides adequate evidence for a reasonable jury to conclude that Plaintiffs suffered actual injury as a result of Defendants’ advertisements. See, e.g., Brunswick Corp. v. Spinit Reel Co., 832 F.2d 513, 525 (10th Cir.1987) (stating that actual consumer confusion entitling a plaintiff to monetary damages may be demonstrated through consumer surveys); U-Haul III, 601 F.Supp. at 1148-49 (basing damage award on market analysis). The district court’s grant of summary judgment on the" }, { "docid": "11294631", "title": "", "text": "likely to be proven false. 2. Claims Allegedly Misleading Statements not actually false may still be actionable as misleading. When the representations are allegedly misleading, rather than false, “the statute demands only proof that the plaintiff provide a reasonable basis for the belief that the plaintiff is likely to be damaged as a result of the false advertising.” Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d at 190. Unfortunately, the case law does not establish a minimum standard of proof for a tendency to mislead. Circumstantial evidence may be sufficient for injunctive relief. PPX Enterprises, Inc. v. Audiofidelity Enterprises, Inc., 818 F.2d at 271. A showing that a small but “not insubstantial number of consumers were clearly misled” may also be sufficient. Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d at 317. While it was unnecessary to examine consumer reaction to representations the court found to be actually false, PPX Enterprises, 818 F.2d at 272, such an inquiry was necessary to determine whether the parties were likely to prevail on their claim that the remaining representations were misleading. Evidence of consumer reaction usually consists of surveys and market research, but other reliable evidence may be given substantial weight. American Home Prods. Corp. v. Johnson & Johnson, 577 F.2d at 167. See, e.g., American Brands, Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. at 1357 (expert testimony, if not frivolous, may be considered). Neither party produced such evidence sufficient for the court to conclude that it was substantially likely to establish at trial that the representations, other than those identified above as likely to be proven false, had a “tendency to mislead.” The court expresses no opinion as to how the trier of fact will dispose of these additional claims. B. Irreparable Harm Proof of falsity is sufficient to sustain a finding of irreparable injury for purposes of a preliminary injunction. Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190 (S.D.N.Y.1987). Once a plaintiff has shown that the defendant’s representations are false or tend to mislead the public so as to affect their purchasing decision, the likelihood of injury can be demonstrated" } ]

[ { "docid": "22715697", "title": "", "text": "capital account.” What, in the circumstances of this case, was a proper adjustment of the basis was thus purely an accounting problem and therefore a question of fact for the Tax Court to determine. Evidently the Tax Court thought that the previous deductions were not altogether “properly chargeable to capital account” and that to treat them as an. entire recoupment of the value of taxpayer’s stock would not have been a “proper adjustment.” We think there was substantial evidence to support such a conclusion. The Government relies upon Burnet v. Sanford & Brooks Co., 282 U. S. 359, for the proposition that losses of one year may not óffset receipts of another year. But the case suggested its own distinction: “While [the money received] equalled, and in a loose sense was a return of, expenditures made in performing the contract, still, as the Board of Tax Appeals found, the expenditures were made in defraying the expenses. . . . They were not capital investments, the cost of which, if converted, must first be restored from the proceeds before there is a capital gain taxable as income.” 282 U. S. at 363-64. It is also worth noting that the Court affirmed the Board’s decision, which had been upset by the circuit court of appeals, and answered, in part, the contention of the circuit court that certain regulations were applicable by saying, “. . . nor on this record do any facts appear tending to support the burden, resting on the taxpayer, of establishing that the Commissioner erred in failing to apply them.” 282 U. S. at 366-67. It is argued on behalf of the Commissioner that the Court should overrule the Board by applying to this question rules of law laid down in decisions on the analogous problem raised by recovery of bad debts charged off with out tax benefit in prior years. The court below accepted the argument. However, instead of affording a reason for overruling the Tax Court, the history of the bad debt recovery question illustrates the mischief of overruling the Tax Court in matters of tax accounting." } ]

[ { "docid": "15641746", "title": "", "text": "the trust companies. For a number of years before 1928 Mr. Moran did not present some of his certificates and collected no interest on them. In March, 1928, he presented all of them and collected back and current interest on them amounting to about $24,000. As much of this interest as was earned in 1928 he returned as income for that year. He did not return the amount received as interest for prior years; nor had he reported such interest in the years in which it accrued. Neither party contends that Moran acted fraudulently; and there is no such finding by the Board of Tax Appeals. The Commissioner included all the interest received in 1928 as income for that year; and the Board of Tax Appeals affirmed his action. It is argued for the executrix that the interest was “constructively received” by Mr. Moran in the years in which it accrued, and should therefore be taxed in those years, and not as a lump sum in 1928. For the earlier years the tax is outlawed, and as to them the contention is that the tax has been lost. The Commissioner urges (1) that Moran, having elected to treat the interest as not received until actually collected, and having acted on that election in making his tax returns for the prior years in which the interest accrued, cannot now be heard to say that the interest should have been returned and taxed in the years in which it became payable, .and that Moran’s estate stands in no better position, and (2) that the interest in question was not received by Moran until he collected it. In our opinion, the Commissioner’s first contention must be sustained. Assuming — as we are bound to assume on the record before us — -that Moran acted honestly, his conduct, in not including the interest as it accrued in his early returns, evidenced an election on his part to treat it as not received until actually collected. Having made that election and acted on it in his dealings with the government, and having had the benefit" }, { "docid": "23058382", "title": "", "text": "is a mandatory rule that items which satisfy § 29.42-2 are “received” and therefore taxable only in the year of “constructive receipt,” and the taxpayer as well, as the Commissioner may rely on it. The Regulations themselves offer little help in solving this problem. Section 29.42-2 speaks of income which may be drawn upon at any time as “subject to tax for the year during which so credited or set apart,” which suggests that the Commissioner has an option to treat such income as received or not, as he prefers; but the Regulation goes on to provide: “To constitute receipt in such a case the income must be credited or set apart to the taxpayer without any substantial limitation,” from which the opposite conclusion may be drawn. (Italics supplied.) Nor do cases or commentaries resolve the ambiguity. Compare Raleigh v. United States, 1934, 5 F.Supp. 622, 78 Ct.Cl. 653; Alice H. Moran, 1932, 26 B.T.A. 1154, affirmed on other grounds, 1 Cir., 1933, 67 F.2d 601; J. O. W. Gravely, 1933, 29 B.T.A. 29; Dillis C. Knapp, 1940, 41 B.T.A. 23; George H. Letz, Sr., 1941, 45 B.T.A. 1011; Pacific Northwest Finance Corporation, 1944, 3 T.C. 498, 503; 2 Mertens, supra, § 10.02; Note, 53 Harv. L. Rev. 851, 854 — 55 (1940), with Commissioner v. Scatena, 9 Cir., 1936, 85 F.2d 729; Commissioner v. Yates, 7 Cir., 1936, 86 F.2d 748; Loose v. United States, 8 Cir., 1934, 74 F.2d 147, 150; and William Steele, 1936, 34 B.T.A. 173, 176. However, in this Circuit at least, it seems settled that the doctrine of constructive receipt can be asserted by a taxpayer to defeat an attempt to assert a tax in a later year. In Commissioner v. Arnold, 1 Cir., 1945, 147 F.2d 23, a loan account with an investment company was established for the benefit of the taxpayers. Interest was credited to them in years prior to 1935, and was actually received in 1935 on liquidation of the company. This court upheld the Tax Court’s decision that amounts constructively received in prior years were not taxable in 1935. And" }, { "docid": "22191744", "title": "", "text": "Mr. Justice Reed delivered the opinion of the Court. This writ of certiorari brings here for review the question of the taxability, as income, of rent and interest on accounts owed by the taxpayer which were cancelled by its creditors. The taxpayer, a corporation, respondent here, owed certain past due bills for merchandise. This indebtedness was represented by interest-bearing notes. Interest upon these notes had been accrued for the years prior to 1937 and deducted in the taxpayer’s income tax returns, to the amount of $11,435.22. In November, 1936, the creditors agreed to cancel all interest accruing after January 1, 1932. The first entry on the taxpayer’s books which records the cancellation appears in December, 1937, the tax year here involved, when over $16,000 was credited. The taxpayer in December, 1933, also owed back rent amounting to $15,298.99. This back rent had been accrued as an expense. A new lease was negotiated at that time and the lessor promised to make an adjustment of the accumulated obligation. The following April the lessor advised the taxpayer that he would accept $7,500 in payment of the back rent and would cancel the rest. The reduced sum was paid in February, 1937, by cash and notes which were met the same year. In 1937 the first entries were made on both the lessor’s and the taxpayer’s books, showing the partial forgiveness of the back rent. The date of the book entries of the cancellations and the deduction of the interest for the whole of 1936 by the taxpayer led the Board of Tax Appeals to uphold the Commissioner’s determination, that the cancellation of all items of indebtedness involved here took place in 1937. This determination is accepted by us. Wilmington Trust Co. v. Commissioner, 316 U. S. 164, 168. The taxpayer credited the total amount of the cancelled debts, $25,219.65, to earned surplus. It did not return any of the sum as taxable income. No proof appears of the insolvency of the taxpayer before or after the cancellation. Its balance sheets show assets exceeding liabilities at the opening and close of 1937 with" }, { "docid": "23399429", "title": "", "text": "that ease the same complaint was made as is made here that the tax was not computed correctly because the taxpayer’s estimates were disregarded. The answer of this Court was: “Of course, under such circumstances neither the Tax Court nor the Commissioner is required to follow the taxpayers’ estimates ‘[T]he Commissioner may determine the amount of income received by a taxpayer upon any reasonable basis.’ * * * ****** “While perhaps such estimates were not particularly generous to taxpayer, as the Commissioner contends there is sufficient evidence to sustain them, and we cannot hold they were clearly erroneous.” In this and other cases courts apply the principle that where controlling stockholders divert corporate income to-themselves “such diverted funds should be treated as constructive dividends.” Allusion has already been made to the fact that the taxpayer, in his testimony, spoke of the business of the various agencies through which he acted as “my business”, and insisted that he “owned them” and “was responsible for them”. So in charging him with the income and profits of these agencies the Tax Court merely took him at his word and correctly taxed him as the recipient of the income. IV The Camille Pitts Account The taxpayer insists that the Tax Court erred in sustaining the Commissioner’s inclusion in his income for 1935 deposits of $44,383.19 in an account held in the name of Miss Camille Pitts in the Lake Shore Trust and Savings Bank, Chicago, Illinois. The taxpayer admitted that the account was his but denied that the money was income to him. Miss Pitts was his bookkeeper and it was stated by him and Miss Pitts, at the trial, that the account was opened in her name so that she might pay his bills when he was out of town. It has been admitted that during most of 1935 and 1936 the taxpayer was a resident of California. The taxpayer maintained that in 1935 he was not engaged in any business. For the year 1936 he made a return in which he claimed a loss. He gave his occupation “Investments”. In asking us" }, { "docid": "23058381", "title": "", "text": "salary was credited to him. The doctrine of constructive receipt was, no doubt, conceived by the Treasury in order to prevent a taxpayer from choosing the year in which to return income merely by choosing the year in which to reduce it to possession. Thereby the Treasury may subject income to taxation when the only thing preventing its reduction to possession is the volition of the taxpayer. But is the doctrine to be deemed merely an available tool of the Commissioner, or is it a test of realization of income within the meaning of § 42 of the Code, 26 U.S.C.A. Int.Rev. Code, § 42, providing that income shall be taxed in the year it is received? If it is the former, the normal rule that income is taxable to a taxpayer on the cash system of accounting only when actually received in cash, or the equivalent of cash, remains unqualified except for the privilege of the Commissioner to reach items which satisfy § 29.42-2 of his Regulations. If it is the latter, then it is a mandatory rule that items which satisfy § 29.42-2 are “received” and therefore taxable only in the year of “constructive receipt,” and the taxpayer as well, as the Commissioner may rely on it. The Regulations themselves offer little help in solving this problem. Section 29.42-2 speaks of income which may be drawn upon at any time as “subject to tax for the year during which so credited or set apart,” which suggests that the Commissioner has an option to treat such income as received or not, as he prefers; but the Regulation goes on to provide: “To constitute receipt in such a case the income must be credited or set apart to the taxpayer without any substantial limitation,” from which the opposite conclusion may be drawn. (Italics supplied.) Nor do cases or commentaries resolve the ambiguity. Compare Raleigh v. United States, 1934, 5 F.Supp. 622, 78 Ct.Cl. 653; Alice H. Moran, 1932, 26 B.T.A. 1154, affirmed on other grounds, 1 Cir., 1933, 67 F.2d 601; J. O. W. Gravely, 1933, 29 B.T.A. 29; Dillis" }, { "docid": "23058388", "title": "", "text": "in the manner in which he would normally be permitted to deal with it. The respondent’s argument in this case appears to be couched in terms of election, and is based on the theory, which we have rejected, that constructive receipt is a rule the application of which is optional with the Commissioner, and that there was something akin to a real choice available to the petitioner before, or in, 1932. But under our view of constructive receipt, petitioner had no lawful choice other than to report as income such of his salary as was constructively received, either in 1932 or earlier. It therefore appears that if either of these doctrines applies, it is that of estoppel. Thus our decision in Moran v. Commissioner, 1 Cir., 1933, 67 F.2d 601, heavily relied upon by respondent, appears clearly distinguishable. In that case the taxpayer owned certificates of deposit which bore interest, but the interest was not credited to any particular person or certificate; interest was paid and charged to a general account only when certificates were presented. In 1928 the taxpayer collected back and current interest, but reported as income only that part earned in 1928. The court compared the case to the situation where one has the right to file either of two different sorts of returns, and said that the taxpayer was bound by his election to treat the interest as not received until collected. The decision emphasized the fact that there was room for real doubt as to the proper tax treatment to be accorded the interest prior to its physical receipt, so that the taxpayer could really be regarded as having made a choice. The court also noted that the Commissioner had never challenged the taxpayer’s election. Thus, the case now before us is distinguishable from the Moran case in so far as there was no real doubt, in 1932 at least, as to the taxability of petitioner’s accrued salary. Moreover, in the present case, the Commissioner did challenge petitioner’s “election” when in 1936 he required petitioner to take the very theory of constructive receipt which petitioner" }, { "docid": "23058399", "title": "", "text": "should be drawn than the taxpayer’s own interpretation of the law. And it seems settled that estoppel cannot be predicated upon a mere statement of law or silence resulting from an error of law. Commissioner v. American Light & Traction Co., 7 Cir., 1942, 125 F.2d 365; Commissioner v. Union Pacific R. Co., 2 Cir., 1936, 86 F.2d 637; United States v. Du Pont, D.C.Del., 1942, 47 F.Supp. 894; Sugar Creek Coal & Mining Co., 1934, 31 B.T.A. 344; Tide Water Oil Company, 1934, 29 B.T.A. 1208 (1934). Of course this court may not make findings as to the existence or lack of existence of facts sufficient to raise an estoppel. But even if the Tax Court on reconsideration of this case should find in the record justifiable reliance by the respondent on the petitioner’s returns, it is our view that in the absence of either deliberate or unintentional misrepresentation of facts there can be no estoppel. It may be noted that if we were to hold that mere failure to report income results in estoppel and therefore in effect tolls the statute of limitations, we would be rendering virtually meaningless § 275 (c) of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 275(c), which provides, “If the taxpayer omits from gross income an amount properly includible therein which is in excess of 25 per centum of the amount of gross income stated in the return, the tax may be assessed * * * at any time within 5 years after the return was filed.” In sum, we hold that the Tax Court erred in attributing to 1939 the disputed items of accrued salary, that if these items were constructively received when earned they cannot be treated as income in any later year, that the doctrine of election is inapplicable to the facts of this case, and, in the absence of misstatement of fact, intentional or otherwise, the petitioner cannot be es-topped from asserting that the items were, taxable only in the years in which constructively received. Accordingly, the decision of the Tax Court is reversed and the case remanded to" }, { "docid": "23058372", "title": "", "text": "and that if the salary was allocable to prior years it cannot be taxed now. Respondent argues, however, that the doctrine of constructive receipt cannot be resorted to by a taxpayer who thereby changes his previous position that the items in question are not income until reduced to possession. Though conceding lack of fraudulent intent on the part of the taxpayer, respondent nevertheless argues further that petitioner made an election not to treat the items in question as income until physically received, and that petitioner is now bound thereby. Respondent asserts that he was not apprised of the crediting of part of petitioner’s salary, and of the removal in 1932 of the barrier to withdrawal, until the statute of limitations had barred a deficiency for 1932. Respondent questions the Tax Court’s finding that petitioner was on the accrual basis in 1939, 1940, and 1941, and its consequent lumping of all withdrawals into the taxable year 1939, but respondent does not appeal. Finally, respondent suggests that “matters of this kind are ‘tax accounting’ and so now within the special province of the Tax Court under the doctrine of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248. * * * ” We need not decide whether the Tax Court’s finding that petitioner was on the accrual basis in 1939 was supported by substantial evidence. According finality to this finding, we nevertheless conclude that the decision below is erroneous. It is based on a misconception of the respective functions of the Commissioner and the Tax Court in prescribing the conditions appropriate for approval of a change in the method of accounting. As such, the decision is reviewable under both the majority and the concurring views expressed in Trust of Bingham v. Commissioner, 1945, 365 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670, 163 A.L.R. 1175. Section 29.41-2 of Treasury Regulations 111 provides, in part: “A taxpayer who changes the method of accounting employed in keeping his books shall, before computing his income upon such new method for purposes of taxation, secure the consent of the Commissioner. * * *" }, { "docid": "10413179", "title": "", "text": "The taxpayer also kept a book of accounts of his own in which were reflected his transactions with the company and whatever income was carried to his credit on the company’s books was entered as income on his books when accrued, irrespective of the time when the amounts were paid to or withdrawn by him. The Board said: Passing without discussion the contention that because the tantieme recipients were in control of the Company there was constructive receipt by them of these tantiemes, we find that this taxpayer kept an account book in which he recorded his various transactions. Included in this are accounts and notes receivable and payable, upon which interest is annually accrued, whether or not paid or payable. Taxes were entered in the year in which payable. Sums credited to his account by his employer were entered as of the date credited, whether paid or not. While there are departures from a strict accrual system of accounting, it is manifest that the primary purpose of the taxpayer’s accounts is to reflect income and expense upon an accrual basis, and the returns of the taxpayer were uniformly made upon that basis. In such circumstances it is immaterial that some items may not have been treated upon a strictly accrual basis. Appeal of Bartles-Scott Oil Co., 2 B. T. A. 16; Appeal of John F. Cook, 4 B. T. A. 916. In such cases the net income will be adjusted to correctly reflect it upon the accrual basis. It seems evident that these tantiemes were accruable for the year in which earned. The amount which each person was to receive was a mere matter of computation, being a percentage of the profits for the year. When such amounts are definitely ascertainable as of the close of the year, the fact that the computation and entry on the books is made after the close of the year is immaterial. In such a case the amounts are properly to be accrued as an expense by the corporation for the year in which the services were rendered. The Commissioner has so treated" }, { "docid": "11977013", "title": "", "text": "cash, the Commissioner then deducted the seller’s basis for the stock and found the taxable profits. The court held. there would be no taxable income until actual receipts by the seller exceeded his basis for the stock. We think the same principle is applicable here. The taxpayer rightfully contends that the items collected by the German banks which consisted of interest, dividends, and profits paid and credited to the taxpayer’s accounts prior to July 2, 1921, and which the taxpayer did not report in his federal income tax returns for the year when collected, could not be taxed as received in 1928. The reason advanced for not reporting these taxes was the lack of means of communication between Germany and the United States during the period of the war and for some time thereafter. The taxpayer was not advised of their deposit. These items collected by the German bank and deposited to the credit of the taxpayer in the accounts were received in the years such deposits were made and accordingly could not be treated as income to this taxpayer in 1928 or any subsequent year. Accordingly, the decision of the Board of Tax Appeals, that of the payment received in 1928 po part thereof is taxable income, is affirmed. The Commissioner’s appeal also involves the deductibility of the attorneys’ fees charged as a business expense and disbursements under section 23 (a) Revenue Act 1928, 26 USCA § 2023 (a). The Commissioner determined that a portion of the attorney’s fees allocable to what he concedes to be the taxpayer’s capital in the awards is not deductible as an expense for the reason that it is a capital charge. This contention was rejected by the Board of Tax Appeals, which held that the full amount was deductible from gross income in accordance with the provisions of section 23 (a) of the Revenue Act of 1928, 26 USCA § 2023 (a). It must be remembered that this taxpayer had a banking house in Germany where balances were kept. The cost of the recovery of these balances through the Mixed Claims Commission comes" }, { "docid": "23058389", "title": "", "text": "presented. In 1928 the taxpayer collected back and current interest, but reported as income only that part earned in 1928. The court compared the case to the situation where one has the right to file either of two different sorts of returns, and said that the taxpayer was bound by his election to treat the interest as not received until collected. The decision emphasized the fact that there was room for real doubt as to the proper tax treatment to be accorded the interest prior to its physical receipt, so that the taxpayer could really be regarded as having made a choice. The court also noted that the Commissioner had never challenged the taxpayer’s election. Thus, the case now before us is distinguishable from the Moran case in so far as there was no real doubt, in 1932 at least, as to the taxability of petitioner’s accrued salary. Moreover, in the present case, the Commissioner did challenge petitioner’s “election” when in 1936 he required petitioner to take the very theory of constructive receipt which petitioner is now supposed to be precluded from urging. The Moran case was narrowly limited by this court in Commissioner v. Arnold, 1 Cir., 1945, 147 F.2d 23, and other recent decisions appear to require, as a condition to applying the doctrine of election, that the Code or Regulations specifically allow the taxpayer alternative methods of treating the transaction in question. Respondent offers another doctrine, which has found some judicial support, that a taxpayer must consistently follow the theory upon which his earlier returns were made. Although akin to estoppel, this rule differs from the usual variety of estoppel in that it is applied even where reliance is not based on any misstatement of fact, innocent or otherwise. See Comar Oil Co. v. Helvering, 8 Cir., 1939, 107 F.2d 709, 711, 712. The same theory was invoked to the disadvantage of the government in Dixie Margerine Co. v. Commissioner, 6 Cir., 1940, 115 F.2d 445, certiorari denied, 1936, 297 U.S. 713, 56 S.Ct. 589, 80 L.Ed. 999. See also Johnson v. Commissioner, 5 Cir., 1947, 162" }, { "docid": "14554181", "title": "", "text": "OPINION. Raum, Judge: The Commissioner determined a deficiency of $3,593.74 in income tax for the year 1948. The question for decision is whether $6,780.64 in unclaimed and dormant deposits in the tax payer bank represented income when in 1948 it transferred that amount from its deposit liability account to surplus. The facts have been stipulated, and the stipulation is incorporated herein by reference as our findings. The taxpayer, National Bank of Olney at Philadelphia, was incorporated as a national bank in 1934, when it acquired various assets and assumed certain liabilities of a liquidated national bank bearing a similar name, The National Bank of Olney in Philadelphia, which we shall refer to as the predecessor bank. Among such liabilities were certain depositors’ accounts of the predecessor bank. During 1948 the taxpayer, after fruitless attempts to locate certain depositors by mail, advertising, and otherwise, transferred to its Undivided Profits or Surplus Account certain of the above depositors’ accounts which were unclaimed, dormant, and inactive in the amount of $6,780.64, and thereupon closed out its unclaimed deposit accounts in that amount. It did not include that amount as income in its 1948 return, but it is stipulated that it was shown as “a Sundry Credit to Earned Surplus.” The Commissioner treated this amount as additional income in his determination of deficiency. During the taxable year 1948 and the years prior thereto taxpayer’s books, records, and papers were not examined by any officer or agent of the Commonwealth of Pennsylvania, nor did the taxpayer at any time during that same period ever report to the Commonwealth the names and last known addresses of the depositors, or persons entitled to the unclaimed moneys or dividends together with the amounts and nature thereof. First. We consider at the outset the general question whether unclaimed deposits may constitute income to a bank. The problem does not come to us without persuasive precedent. Boston Consol. Cas Co. v. Commissioner, 128 F. 2d 473 (C. A. 1), affirming 44 B. T. A. 793, involved unclaimed deposits which had been made by former gas company customers as well as" }, { "docid": "11977012", "title": "", "text": "the instant case, the Board found that there was no reasonable prospect of the full amount being paid. In Automobile Ins. Co. of Hartford v. Commissioner (C. C. A.) 72 F.(2d) 265, the taxpayer keeping its books on an accrual basis received 80 per cent, of the amount due as an award of the Mixed Claims Commission, and we held that it was entitled to accrue the difference for that year. The case is distinguishable because this taxpayer kept his books on a cash basis. Moreover, the record in the Automobile Insurance Company Case contained no evidence showing the improbability of receiving further payments from Germany, as is shown in the instant case and as found by the Board. In Burnet v. Logan, 283 U. S. 404, 51 S. Ct. 550, 75 L. Ed. 1143, the court considered the attempt of the Commissioner to base income tax on a speculative assumption wherein he determined the value of the seller’s promise to pay 60 per cent, a ton for ore mined. Adding this value to the cash, the Commissioner then deducted the seller’s basis for the stock and found the taxable profits. The court held. there would be no taxable income until actual receipts by the seller exceeded his basis for the stock. We think the same principle is applicable here. The taxpayer rightfully contends that the items collected by the German banks which consisted of interest, dividends, and profits paid and credited to the taxpayer’s accounts prior to July 2, 1921, and which the taxpayer did not report in his federal income tax returns for the year when collected, could not be taxed as received in 1928. The reason advanced for not reporting these taxes was the lack of means of communication between Germany and the United States during the period of the war and for some time thereafter. The taxpayer was not advised of their deposit. These items collected by the German bank and deposited to the credit of the taxpayer in the accounts were received in the years such deposits were made and accordingly could not be treated" }, { "docid": "23058387", "title": "", "text": "to consider these equitable defenses, we are faced with “one of the most confused and entangled subjects in all tax law.” United States v. Du Pont, D.C.Del., 1942, 47 F.Supp. 894, 896; see Maguire and Zimet, Hobson’s Choice and Similar Practices in Federal Taxation, 48 Harv.L.Rev. 1281 (1935); Atlas, The Doctrine of Estoppel in Tax Cases, 3 Tax L.Rev. 71 (1947); Jones, Estoppel in Tax Litigation, 26 Geo.L.J. 868 (1938); Karol, The Doctrine of Estoppel, 23 Taxes 1132 (1945). At the outset, a significant difference, certainly in terminology, is to be noted, between election and estoppel. The former is applicable where a taxpayer has had a choice of two methods of computing his tax, both legal; where the doctrine of election is applied he is not permitted to change his mind to the detriment of the revenue. Estoppel, on the other hand, applies where there was only one lawful course open, which was not followed by the taxpayer, as a result of which, in certain instances, he is barred from treating some later related transaction in the manner in which he would normally be permitted to deal with it. The respondent’s argument in this case appears to be couched in terms of election, and is based on the theory, which we have rejected, that constructive receipt is a rule the application of which is optional with the Commissioner, and that there was something akin to a real choice available to the petitioner before, or in, 1932. But under our view of constructive receipt, petitioner had no lawful choice other than to report as income such of his salary as was constructively received, either in 1932 or earlier. It therefore appears that if either of these doctrines applies, it is that of estoppel. Thus our decision in Moran v. Commissioner, 1 Cir., 1933, 67 F.2d 601, heavily relied upon by respondent, appears clearly distinguishable. In that case the taxpayer owned certificates of deposit which bore interest, but the interest was not credited to any particular person or certificate; interest was paid and charged to a general account only when certificates were" }, { "docid": "13368119", "title": "", "text": "SWAN, Circuit Judge. This appeal presents a controversy relating to the income tax liability for the calendar, year 1922 of William C. Shanley, who died on December 28, 1922. On. the merits the question is whether certain moneys received and expended by the trustee of a trust created by Shanley were properly treated as part of Shanley’s gross income for the year 1922. In addition, the defendant contends that an escrow agreement .dated February 5, 1928, is a complete defense to the plaintiffs’ action. The latter question, which apparently was the only one controverted in the District Court, may conveniently be disposed of first. In March, 1923, the executors of the deceased taxpayer filed an income tax return, including as gross income of the decedent for 1922 the items now in dispute, and paid part of the tax liability disclosed by the return. Before any further payment was due, they filed an amended return excluding the disputed items, and filed claims for abatement and credit. The Commissioner ' disallowed their claims in the main, issued a certificate of overassessment in the sum of $145.61, and determined the tax at $26,065.61. The executors then appealed to the Board of Tax Appeals, but their petition was dismissed for lack of jurisdiction. Shanley v. Commissioner of Internal Revenue, 7 B.T.A. 521. This decision was affirmed by this court in Shanley v. Commissioner, 28 F.(2d) 1018. While the appeal was pending here, the executors deposited securities in escrow to assure to the collector, upon the terms stated in an escrow agreement dated February 5, 1928, payment of the disputed taxes. After the decision of this court, the collector of internal revenue demanded payment, and the executors paid under protest, the balance of the 1922 taxes, amounting, with interest, to $19,896.24. They filed a claim for refund which the Commissioner rejected, and on June 22, 1931, the present action was instituted against the executor of the deceased collector to recover this sum. It is the defendant’s contention that the escrow agreement obligated the executors to pay the 1922 taxes as previously determined by the Commissioner," }, { "docid": "15808575", "title": "", "text": "or in some way related to, an initial transaction in the taxable year.” The ineluctable conclusion is that the deduction taken on its 1935 return for “cost of goods sold” was a proper deduction, and further, the refund to petitioner by the Mills in 1936 constitutes income for that year. The Tax Court was not in error. Finally, although the matter was not seriously considered by either party, we are satisfied that the case of Dixie Pine Products Co. v. Commissioner, 1944, 320 U.S. 516, 64 S.Ct. 364, 88 L.Ed. 270, the Security Flour Mills case, supra, and the case of Bingham’s Trust v. Commissioner, 325 U.S. 365, 65 S.Ct. 1232, clearly disclose that because of .the grounds on which the Tax Court rested its decision, the doctrine limiting judicial review on appeal from Tax Court decisions contained in Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, is here inapplicable. Cf. Commissioner v. Blaine, Mackay, Lee Co., supra; Cooperstown Corporation v. Commissioner, 3 Cir., 1944, 144 F.2d 693, certiorari denied, 1944, 323 U.S. 772, 65 S.Ct. 131. For the reasons stated the decision of the Tax Court of the United States is affirmed. Revenue Act of 1934, c. 277, 48 Stat. 680: “See. 23. Deductions from Gross Income. “In computing net income there shall be allowed as deductions: “(a) Expenses. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * Revenue Act of 1936, c. 690, 49 Stat. 1648: “Sec. 41. General Rule. “The net income shall be computed upon the basis of the taxpayer’s annual accounting period * * * in accordance with the method of accounting regularly employed in keeping the books of such taxpayer ; * * “Sec. 42. Period in Which Items of Gross Income Included. “The amount of all items of gross income shall be included in the gross income for the taxable yeár in which received by the taxpayer, * * “Sec. 43. Period for Which Deductions and Credits Taken. “The deductions and credits (other than the" }, { "docid": "23058383", "title": "", "text": "C. Knapp, 1940, 41 B.T.A. 23; George H. Letz, Sr., 1941, 45 B.T.A. 1011; Pacific Northwest Finance Corporation, 1944, 3 T.C. 498, 503; 2 Mertens, supra, § 10.02; Note, 53 Harv. L. Rev. 851, 854 — 55 (1940), with Commissioner v. Scatena, 9 Cir., 1936, 85 F.2d 729; Commissioner v. Yates, 7 Cir., 1936, 86 F.2d 748; Loose v. United States, 8 Cir., 1934, 74 F.2d 147, 150; and William Steele, 1936, 34 B.T.A. 173, 176. However, in this Circuit at least, it seems settled that the doctrine of constructive receipt can be asserted by a taxpayer to defeat an attempt to assert a tax in a later year. In Commissioner v. Arnold, 1 Cir., 1945, 147 F.2d 23, a loan account with an investment company was established for the benefit of the taxpayers. Interest was credited to them in years prior to 1935, and was actually received in 1935 on liquidation of the company. This court upheld the Tax Court’s decision that amounts constructively received in prior years were not taxable in 1935. And even were this a problem of first impression, the same result is persuasive. We should suppose that by virtue of the doctrine of constructive receipt, a taxpayer has an affirmative obligation to .report any income falling within its scope in his return for the year of such receipt, and that his failure to do so will subject him to such liabilities for interest, penalties, or even criminal prosecutions, as may be appropriate to his case. If this is so, the doctrine does not merely afford a special choice which the Commissioner may, if he sees fit, exercise retroactively against a taxpayer, but a rule of law, determining what constitutes taxable income, and as such presumably binding on all parties. To allow the Commissioner to refrain, at his own option, from asserting his claim until years later is against the important policy underlying the statute of limitations. If this view means avoidance of taxation in some cases, it must be remembered that if such avoidance is fraudulent the tax may be assessed or collected at any" }, { "docid": "7938890", "title": "", "text": "$54,498.18. On December 30, 1960, the books and records of the corporation show a credit to ‘Building Accounts Receivable — Paul W. Berthold’ in the amount of $54,-498.18, and a debit to the account entitled ‘Notes Receivable’ in the same amount. The books and records of the Walberton Company show the assumption of the liability in an account entitled ‘Notes Payable.’ ” Taxpayers treated the building funds as loans by the Berthold Electric Company to Paul Berthold. In this regard they relied primarily upon the facts set forth above, plus an entry in the minutes of a meeting of the Board of Directors of Berthold Electric, dated October 15, 1957, as follows: “A meeting of Directors of the Bert-hold Electric Company was held with the following present:— Paul W. Berthold, President Dorothy J. Berthold, Vice President Adeline Berthold, Secretary-Treasurer. “It was voted that any amount the Berthold Electric Company advances Paul W. Berthold on loans is to be repayable at 4% interest from date of loan. 5% on unpaid balance. To be repayable five (5) years from January 1st, 1958.” Taxpayers also point to the fact that during most of the years about which testimony was taken, Berthold advanced substantial sums to the Berthold Electric Company. The Commissioner redetermined the taxes of taxpayers for 1957, 1958 and 1959, treating the building fund items as dividends to Berthold or as capital gain. The taxpayers did not (and do not) dispute the Commissioner’s computations, but for the reasons stated above, do dispute the added income taxes as determined by the Commissioner and upheld by the Tax Court. The Tax Court did not find any facts contrary to petitioners’ contentions, but did infer from them and other undisputed facts a different conclusion— namely, that the $54,498.18 was dividend or capital gain income to taxpayers rather than a loan. The Tax Court’s opinion emphasized: 1) that the corporations involved were closely held and controlled; 2) that the dividends paid by Berthold Electric were nominal; 3) that there were no notes given and that there was no security in the form of a mortgage required" }, { "docid": "15641745", "title": "", "text": "MORTON, Circuit Judge. This is a petition on behalf of the taxpayer to review a decision by the Board of Tax Appeals (26 B. T. A. 1154), involving income taxes for the year 1928. The taxpayer, Thomas J. Moran, died in 1930, and the petition is prosecuted by his executrix. There is no dispute as to the facts. The items in controversy consist of interest on certain certificates of deposit held by Mr. Moran. From time to time he deposited substantial amounts of money in two trust companies in Providence, R. I., and took therefor eertifi cates of deposit. The earliest of these deposits appears to have been made in January, 1915, and the latest in March, 1928. The certificates bore interest, the rate of which might be varied on notice to the holder. No- interest was credited on the companies’ books to any particular certificate or person, until the certificate was presented, when the interest on it was figured and paid: Such payments were charged to a general interest-due account on the books of the trust companies. For a number of years before 1928 Mr. Moran did not present some of his certificates and collected no interest on them. In March, 1928, he presented all of them and collected back and current interest on them amounting to about $24,000. As much of this interest as was earned in 1928 he returned as income for that year. He did not return the amount received as interest for prior years; nor had he reported such interest in the years in which it accrued. Neither party contends that Moran acted fraudulently; and there is no such finding by the Board of Tax Appeals. The Commissioner included all the interest received in 1928 as income for that year; and the Board of Tax Appeals affirmed his action. It is argued for the executrix that the interest was “constructively received” by Mr. Moran in the years in which it accrued, and should therefore be taxed in those years, and not as a lump sum in 1928. For the earlier years the tax is outlawed," }, { "docid": "2150256", "title": "", "text": "the seller’s behest the seller has constructively received the payment for tax purposes but held that the rule did not apply here because the $110,000 was paid to First Federal Savings and Loan Association at the direction of the Superior Court rather than by direction of taxpayer or her guardian. The Tax Court determined a deficiency of only $226.67. We reverse as to the $110,000 deposited in the escrow account. The Commissioner does not appeal the Tax Court’s holding as to the interest credited to the escrow account during 1964. Section 451(a) of the Internal Revenue Code of 1954, 26 U.S.C., provides: The amount of any item of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under the method of accounting used in computing taxable income, such amount is to be properly accounted for as of a different period. Treasury Regulations Section 1.451-2(a), 26 C.F.R., sets forth the general rule with respect to constructive receipt of income: Income although not actually reduced to a taxpayer’s possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. It is clear that if taxpayer had not been incompetent and had made the same escrow agreement acting for her self, or if the escrow arrangement had been entered into solely by Eubanks acting on behalf of taxpayer as her guardian without the supervision of the local court, the $110,000 payment to the escrow agent would be treated as constructively received by her in 1964. Williams v. United States, 219 F.2d 523 (5 Cir. 1955); Rhodes v. United States, 243 F.Supp. 894 (W.D. S.C.1965); Pozzi v. Commissioner, 49 T.C. 119 (1967). Lipton had signed on May 18, 1962, a contract of sale calling for payment in cash on or before the date set for closing" } ]

[ { "docid": "22621775", "title": "", "text": "— the Court of Appeals turned to consideration of what evidentiary consequences ought to flow from that Fourth Amendment violation. In deciding whether the in-court identification should have been suppressed, the court observed that the analysis must focus on whether the evidence was obtained by official “exploitation” of the “primary illegality” within the meaning of Wong Sun, supra, and that the principal issue was whether the unlawful police behavior bore a causal relationship to the acquisition of the challenged testimony. The court answered that question in the affirmative, reasoning that but for respondent’s unlawful arrest, the police would not have obtained the photograph that led to his subsequent identification by the complaining witnesses and, ultimately, prosecution of the case. Satisfied that the in-court identification was thus at least indirectly the product of official misconduct, the court then considered whether any of three commonly advanced exceptions to the exclusionary rule — the “independent source,” “inevitable discovery,” or “attentuation” doctrines — nonetheless justified its admission. Finding these exceptions inapplicable, the Court of Appeals concluded that, the in-court identification testimony should have been excluded as a product of the violation of respondent’s Fourth Amendment rights. We granted certiorari. 440 U. S. 907 (1979). We reverse. II Wong Sun, supra, articulated the guiding principle for determining whether evidence derivatively obtained from a violation of the Fourth Amendment is admissible against the accused at trial: “The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.” 371 U. S., at 484. See Silverthome Lumber Co. v. United States, supra; Weeks v. United States, 232 U. S. 383 (1914). As subsequent cases have confirmed, the exclusionary sanction applies to any “fruits” of a constitutional violation — whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention. In the typical “fruit of the poisonous tree” case, however, the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the" } ]

[ { "docid": "14488725", "title": "", "text": "admittedly, circumstantial, but it is a factual conclusion that I am authorized to make in ruling on this legal issue and to me there is overwhelming circumstantial evidence that this matter would have been reported to authorities quite apart from the accused’s coerced statement to the Security Police, if not directly from her husband, then from Captain ... in reaction to the confrontations which were likely to continue with her husband. As appealing as this analysis may be, it does not apply the inevitable discovery doctrine as we understand it to have been interpreted by the Court of Military Appeals. Courts are frequently troubled by how to treat evidence associated with an unlawful search or seizure. The most central statement was announced by the Supreme Court in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), where the Court articulated the “fruit of the poisonous tree” doctrine. There are three principal exceptions to total exclusion of derivative evidence. The first exception allows admission where knowledge of the evidence is gained from an “independent source”. Silverthorne Lumber Co., Inc. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The second is where the connection between the unlawful act and the evidence has “become so attenuated as to dissipate the taint”. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The third exception, and the one involved in the present case, is the doctrine or rule of inevitable discovery. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Court of Military Appeals applied the inevitable discovery rule to courts-martial in United States v. Kozak, 12 M.J. 389 (C.M.A.1982). They stated what would allow evidence to be admitted under the inevitable discovery rule: In applying this exception to the exclusionary rule in the future, we will require that after an accused challenges the legality of a search, the prosecution must, by a preponderance of the evidence, establish to the satisfaction of the military judge that when the illegality occurred, the government agents possessed," }, { "docid": "18562184", "title": "", "text": "an approach, the district court reasoned, would involve the court in the overly speculative task of probing a witness’s subjective motivations, and would be contrary to the principle that the state has the right to every person’s evidence. The district court also found no constitutional error in the challenged statements by the prosecutor and in the sufficiency of the evidence to support the conviction for felony murder. On appeal to this court, Hamilton again challenges the admissibility of Maxine Hamilton’s testimony of his confession to her, and the testimony given by Maxine, Lincoln, and Morrison regarding the ten pounds of marijuana. Absent their foundational testimony linking Hamilton to the marijuana itself, Hamilton also argues that the marijuana was inadmissible. For the following reasons, we agree that all of this evidence was inadmissible “fruit” of the police misconduct. It is axiomatic that the exclusionary rule bars the admission of physical evidence and live witness testimony obtained through the exploitation of police illegality, see e.g., Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-17, 97 L.Ed.2d 441 (1963), or, to invoke the metaphor, evidence that is “fruit of the poisonous tree.” Three exceptions to the exclusionary rule have been recognized, however, permitting the use of such evidence if the prosecution shows that it was or could have been secured “by means sufficiently distinguishable to be purged of the primary taint.” Id. at 487-88, 83 S.Ct. at 417. Evidence may be admitted if it has but an “attenuated link” to the underlying illegality, United States v. Ceccolini, 435 U.S. 268, 273-79, 98 S.Ct. 1054, 1058-62, 55 L.Ed.2d 268 (1978); United States v. White, 746 F.2d 426, 428 (8th Cir.1984), if it derived from a source independent of the illegal conduct, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), or if the evidence would inevitably have been discovered absent the illegality. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2507-11, 81 L.Ed.2d 377, (1984); United States v. Apker, 705 F.2d 293, 306-07 (8th Cir.1983). The state contends that the" }, { "docid": "3710483", "title": "", "text": "investigation only by the illegal conduct, that she testified involuntarily, and that therefore her testimony should have been suppressed. Such an approach, the district court reasoned, would involve the court in the overly speculative task of probing a witness’s subjective motivations, and would be contrary to the principle that the state has the right to every person’s evidence. The district court also found no constitutional error in the challenged statements by the prosecutor and in the sufficiency of the evidence to support the conviction for felony murder. On appeal to this court, Hamilton again challenges the admissibility of Maxine Hamilton’s testimony of his confession to her, and Maxine, Lincoln, and Morrison’s testimony regarding the ten pounds of marijuana. Absent their foundational testimony linking Hamilton to the marijuana itself, he also argues that the marijuana was inadmissible. For the following reasons, we believe that all of this evidence was inadmissible “fruit” of the police misconduct. It is axiomatic that the exclusionary rule bars the admission of physical evidence and live witness testimony obtained through the exploitation of police illegality, see e.g., Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963), or, to invoke the metaphor, evidence that is “fruit of the poisonous tree.” Three exceptions to the exclusionary rule have been recognized, however, permitting the use of such evidence if the prosecution shows that it was or could have been secured “by means sufficiently distinguishable to be purged of the primary taint.” Id. at 487-88. Evidence may be admitted if it has but an “attenuated link” to the underlying illegality, United States v. Ceccolini, 435 U.S. 268, 273-79, 98 S.Ct. 1054, 1058-61, 55 L.Ed.2d 268 (1978); United States v. White, 746 F.2d 426, 428 (8th Cir.1984), if it derived from a source independent of the illegal conduct, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), or if the evidence would inevitably have been discovered absent the illegality. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2507-11, 81 L.Ed.2d 377 (1984); United States" }, { "docid": "2262991", "title": "", "text": "ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” Id. at 2509 (emphasis added). Conversely, if the evidence is discovered by unlawful means, the exclusionary rule should apply since its underlying rationale is to deter unlawful police conduct. Under Navau-Ramirez, however, the defendant is forced to prove, as part of his initial showing, that he attempted to stop the police from illegally searching the car. Not only is this requirement contrary to the precedent contained in cases such as Nix, it undermines the rationale for the exclusionary rule in the taint context: “the knowledge gained by the government’s own wrong cannot be used by it.” Wong Sun, 371 U.S. at 485, 83 S.Ct. 407, citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). The exclusionary rule exists “in order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person.” Id. at 484, 83 S.Ct. 407 (citations omitted). To allow the government to introduce illegally seized evidence unless the defendant establishes he could have prevented the officer’s inevitable but unlawful discovery of that same evidence defies common sense in addition to being inconsistent with precedent. See, e.g., Shareef, 100 F.3d at 1508 (suppression of evidence reversed where “vehicles would have been impounded and search as a result of a lawful investigation that was underway before any of the defendants was illegally seized”) (emphasis added); Eylicio-Montoya, 70 F.3d at 1165 (inevitable discovery doctrine applied where illegally seized evidence would have been observed by customs agents “during the course of a lawful Terry stop.”) (emphasis added); United States v. Romero, 692 F.2d 699, 704 (10th Cir.1982) (illegal pat down irrelevant where marijuana packet “clearly would have been discovered within a short time through a lawful investigation already underway.”) (emphasis added). Apart from Nava-Ramirez’s conflict with existing law, there are good policy reasons to be concerned about its implications. First, to follow the test would vitiate the policy considerations supporting the exclusionary" }, { "docid": "7170257", "title": "", "text": "Because Davis had a reasonable expectation of privacy in the gym bag, and because the government failed to carry its burden of demonstrating that Smith’s consent was valid, we hold that the search was illegal. III. FRUIT OF THE POISONOUS TREE Finally, we must consider Davis’ argument that the statements he made to Detective Benedetti following the search should be suppressed as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The standard articulated in Wong Sun remains the relevant test. As the court there explained, the “question in such a case is whether, granting establishment of the primary illegality, the evidence to which [the] instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (internal quotation marks omitted). There are three exceptions to this exclusionary rule: (1) the independent source exception; (2) the inevitable discovery exception; and (3) the attenuated basis exception. See United States v. Smith, 155 F.3d 1051, 1060 (9th Cir.1998). Because the independent source exception is irrelevant here, we discuss only the last two exceptions. The government argues that Davis was already known to the police, because they were searching for him in connection with the Russian roulette incident, and thus nothing learned from the search led to the interview or Davis’ statement at the interview. If, by this argument, the government means to suggest that Davis’ statements should not be suppressed because the information thereby revealed “inevitably would have been discovered by lawful means,” Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the argument is without merit. The assertion establishes no more than the obvious fact that the police would probably have sought Davis out even if the search had not been conducted. The government cannot take advantage of the inevitable discovery exception because it has not pointed to any evidence demonstrating that the police would inevitably have found out that Davis possessed a shotgun. Put directly, in the" }, { "docid": "3710484", "title": "", "text": "of police illegality, see e.g., Wong Sun v. United States, 371 U.S. 471, 484-86, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441 (1963), or, to invoke the metaphor, evidence that is “fruit of the poisonous tree.” Three exceptions to the exclusionary rule have been recognized, however, permitting the use of such evidence if the prosecution shows that it was or could have been secured “by means sufficiently distinguishable to be purged of the primary taint.” Id. at 487-88. Evidence may be admitted if it has but an “attenuated link” to the underlying illegality, United States v. Ceccolini, 435 U.S. 268, 273-79, 98 S.Ct. 1054, 1058-61, 55 L.Ed.2d 268 (1978); United States v. White, 746 F.2d 426, 428 (8th Cir.1984), if it derived from a source independent of the illegal conduct, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), or if the evidence would inevitably have been discovered absent the illegality. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2507-11, 81 L.Ed.2d 377 (1984); United States v. Apker, 705 F.2d 293, 306-07 (8th Cir.1983). The state contends that the challenged evidence was all sufficiently attenuated from Hamilton’s illegally obtained statements to permit its admission. In Ceccolini, the Supreme Court set forth the analytical framework for evaluating whether live witness testimony falls within the exception. The Court deemed of paramount importance the extent to which “the basic purpose of the exclusionary rule will be advanced by its application” in a particular case. Ceccolini, 435 U.S. at 276, 98 S.Ct. at 1060. Relevant to that determination are the costs of permanently disabling a witness from testifying and the degree of free will exercised by the witness in testifying. Id. at 276-78, 98 S.Ct. at 1060-61. Where the cooperation of a witness is in fact the result of an exercise of the individual’s free will, unaffected by police misconduct, the purpose of the exclusionary rule would not be served by disallowing the testimony. In determining the strength of the link between the illegality and a witness’s testimony, Ceccolini directs us to consider the stated" }, { "docid": "4414042", "title": "", "text": "disregard of constitutional requirements,” suppression is not automatic and “any marginal deterrence” from suppression is often insufficient. Id. at 702, 704. 1. The Independent-Source Doctrine. The exclusionary rule prohibits the introduction of evidence, both tangible and testimonial, that is seized or acquired during an unlawful search. See Murray v. United States, 487 U.S. 533, 536, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). “Under the fruit of the poisonous tree doctrine, the exclusionary rule bars the admission of physical evidence and live testimony obtained directly or indirectly through the exploitation of unconstitutional police conduct.” United States v. Hatfield, 333 F.3d 1189, 1193-94 (10th Cir.2003) (citing Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). If police “conduct[ ] unconstitutional searches that acquire! ] information used to obtain [a] search warrant,” then “evidence seized during the later search conducted pursuant to warrant would be inadmissible as fruit of the poisonous tree.” Id. at 1194. When determining whether evidence is fruit of the poisonous tree, a court is to consider whether the evidence was “come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Segura v. United States, 468 U.S. 796, 804-805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (internal quotations omitted)(alteration in original). Under the independent-source doctrine, evidence that is obtained based upon information unrelated to an unlawful search is not fruit of the poisonous tree. See Segura v. United States, 468 U.S. at 799, 104 S.Ct. 3380 (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Evidence therefore need not be excluded under the fruits-of-the-poisonous-tree doctrine if there is an independent source for discovery of the challenged evidence. See id. at 805, 104 S.Ct. 3380. Two Supreme Court cases have considered the operation of the independent-source doctrine in situations where a search warrant is obtained subsequent to an unlawful search. In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801, 104 S.Ct. 3380." }, { "docid": "13299851", "title": "", "text": "S.Ct. 613, 38 L.Ed.2d 561 (1974). The rule bars the introduction at trial not only of evidence seized in violation of the fourth amendment, but also of evidence obtained as an indirect result of the illegal seizure — the fruit of the poisoned tree. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). An exception to this “tainted fruit” doctrine has been established for the case where the connection between the illegal seizure and the subsequent discovery of the challenged evidence has “become so attenuated as to dissipate the taint,” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). It is related to the rule, plainly not available to the government here, that permits the introduction of evidence to which the government was led by means independent of the illegal search or seizure. In certain circumstances, the attenuation doctrine has been applied where the witness who has been located as the result of an illegal search or seizure has voluntarily decided to testify. See Wong Sun v. United States, 371 U.S. at 491, 83 S.Ct. 407. The principle underlying this application of the attenuation doctrine has not been articulated with clarity. It is probably an adaptation, with adjustment, of the general legal conception that sees the link of causation broken when an intervening cause is independent. Turning to the case before us, we examine first the claim that the taint of the illegal seizure was attenuated by a voluntary decision to testify; and next, the claim of attenuation of the taint by the complexity of intervening factors. A. Voluntariness: In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Court excluded the incriminating statements of defendant Toy, made shortly after his illegal arrest, while handcuffed and surrounded by federal narcotics agents. The Court said it was unreasonable to judge that his response to the police interrogation “was sufficiently an act of free will to" }, { "docid": "8992137", "title": "", "text": "371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (“The exclusionary prohibition extends as well to the indirect as the direct products of such invasions.”). The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed. Wong Sun v. United States, 371 U.S. at 485, 83 S.Ct. 407 (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). See United States v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir.2006). The exclusionary rule is simply stated, but courts have been hashing out its scope for many years. 4. Relevant Exceptions to the Exclusionary Rule. The exclusionary rule has exceptions. If illegally obtained evidence is somehow purged of the taint of the unconstitutional conduct, it can be admitted. “The Government can establish that a particular item of evidence has been purged of the primary taint by demonstrating that the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct.” United States v. Olivares-Rangel, 458 F.3d at 1109. See United States v. Torres-Castro, 470 F.3d at 999 (“[T]he government may avoid suppression by demonstrating that the evidence would have been inevitably discovered, that it was discovered by independent means, or that it was so attenuated from the illegality as to dissipate any taint from the Fourth Amendment violation.”). a. Attenuation of the Taint. When determining whether evidence constitutes fruit of the poisonous tree subject to the exclusionary rule, a court must determine, based upon the unique facts of each case, “whether, granting establishment of the primary illegality, the evidence to" }, { "docid": "130590", "title": "", "text": "the exclusionary rule inappropriate; and that the third search, pursuant to a valid warrant, would have inevitably turned up all of the evidence discovered in the second search. The district court admitted all of the evidence seized on the basis of the government’s third point, thereby directly raising for our review the question of an inevitable-discovery exception in this circuit. In order to effectuate the commands of the Fourth Amendment, to deter police misconduct, and to safeguard the integrity of the judicial process, the Supreme Court has fashioned the exclusionary rule which makes inadmissible at trial any evidence derived from the violation of an individual’s right to be free from illegal searches and seizures. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). But the Court has cautioned that not ... all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a ease is “whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959). Wong Sun v. United States, supra, 371 U.S. at 487-88, 83 S.Ct. at 417. In applying the exclusionary rule, a trial court must focus on the existence of “exploitation” of the “primary illegality.” “[T]he primary issue [is] whether the unlawful police behavior bore a causal relationship to the acquisition of the challenged testimony.” United States v. Crews, 445 U.S. 463, 469, 100 S.Ct. 1244, 1248, 63 L.Ed.2d 537 (1980). “[O]f course, ... the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the" }, { "docid": "22799182", "title": "", "text": "not spread to the trial since the improperly seized evidence was not itself admitted. Finally, Appellant argues that under the Wong Sun “fruit of the poisonous tree” doctrine, see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the government should not have been allowed to make any references to the improperly seized items at trial or to any other evidence which was obtained as a consequence of the unlawful search. Once again, Appellant’s arguments are unavailing. Generally the exclusionary rule requires the suppression not only of the evidence improperly seized, but “extends as well to the indirect as the direct products of such invasions.” Wong Sun, 371 U.S. at 484, 83 S.Ct. 407. The “fruit of the poisonous tree” doctrine recognizes an exception, however, when the evidence in question would have been available from an independent source: “the facts thus obtained [from an illegal search do not] become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others.... ” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920), overruled on other grounds by United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), quoted in Wong Sun, 371 U.S. at 485, 83 S.Ct. 407. The government’s other references to the stolen items came from Appellant’s check register, Byard’s testimony from direct personal knowledge, and the testimony of other witnesses who had personally seen red-tagged parts at Appellant’s shop. This evidence was not the fruit of the illegal seizures at Appellant’s home. Instead, that search and those seizures were the culmination' of an investigation during which this other evidence had already been gathered. The check register was seized during the search of Appellant’s home. This seizure, however, was expressly authorized in the warrant. Therefore, although apparently the government was guilty of illegally seizing evidence, no evidence admitted at trial violated the exclusionary rule or the fruit of the poisonous tree doctrine. TIL The standard of review for determining whether the district court" }, { "docid": "21546523", "title": "", "text": "evidence obtained in violation of the Constitution, extends beyond the direct products of government misconduct to evidence derived from the illegal conduct, or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). Verbal evidence, including live-witness testimony, may be no less the “fruit” of official illegality than is tangible, documentary evidence. United States v. Ceccolini, 435 U.S. 268, 275, 98 S.Ct. 1054, 1059, 55 L.Ed.2d 268 (1978); Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). However, the Supreme Court has developed three exceptions to the “fruit of the poisonous tree” doctrine which allow the admission of evidence derived from official misconduct. These three exceptions are the “independent source” exception, the “attenuated basis” exception, and the “inevitable discovery” exception. The “independent source” exception operates to admit evidence that is actually found by legal means through sources unrelated to the illegal search. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). Independent source evidence is not “fruit of the poisonous tree” because its discovery through independent legal means does not result from the official’s illegal conduct. The “attenuated basis” exception applies when the connection between the illegality and the challenged evidence has become sufficiently weak so as to dissipate the taint caused by the illegality. Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417 (noting that the question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”). This exception is applied more generously when the challenged derivative evidence is live-witness testimony than when it is documentary evidence. Ceccolini, 435 U.S. at 278, 98 S.Ct. at 1061. The “inevitable discovery” exception, adopted by the Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), allows the introduction of illegally obtained evidence if the government can show by a" }, { "docid": "22841687", "title": "", "text": "States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); as well as violations of the Fifth Amendment. See, e.g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The Supreme Court has emphasized, however, that the exclusionary rule “has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976). In situations where the exclusionary rule is applicable, the Court has “declined to adopt a ‘per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest [or interrogation].” United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978). The exclusionary doctrine bars evidence that has been illegally obtained only if the “fruit” is sufficiently connected to the “poisonous tree”: We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417 (quoting R. Maguire, Evidence of Guilt 221 (1959)). Whether evidence is sufficiently distinguishable turns on the application of three closely related but analytically distinct exceptions to the exclusionary rule. First, the challenged evidence will be admissible under the “inevitable discovery” doctrine if it inevitably or ultimately would have been discovered by lawful means without reference to the police misconduct. Nix, 467 U.S. at 444, 104 S.Ct. at 2509. Second, under the “independent source” doctrine, the challenged evidence will be admissible if it derived from a lawful source independent of the illegal conduct. Silverthorne, 251 U.S." }, { "docid": "12966763", "title": "", "text": "the stop of the defendants was unreasonable at its inception. The Court cannot reconcile certain inconsistencies in Agent Fisher’s testimony with other evidence in the record. Facing such inconsistencies, the Court cannot help but apply the maxim, falsus in uno, falsus in omnibus (false in one thing, false in everything) to his testimony. Accordingly, the Court finds that the stop of the defendants’ vehicle violated their Fourth Amendment right to be free from unreasonable seizures as Agent Fisher did not have probable cause to believe that a traffic violation had been committed. D. FRUIT OF THE POISONOUS TREE Evidence seized as the result of an unconstitutional search is the fruit of the poisonous tree and may not be used as proof against the victim of the search. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Of course, such evidence is not automatically subject to suppression under the exclusionary rule. Brown v. Illinois, 422 U.S. 590, 600, 95 S.Ct. 2254, 2260, 45 L.Ed.2d 416, 425 (1975). A court must decide “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963) (quotation omitted). The government has the burden to show that the evidence seized is not the fruit of the poisonous tree. United States v. Twilley, 222 F.3d 1092, 1097 (9th Cir.2000). The taint of illegality may be purged if the evidence would have been inevitably discovered absent a connection to the underlying illegality, Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377, 390 (1984), if it were discovered by an independent source, or if the discovery of the evidence has “ ‘become so attenuated as to dissipate the taint.’ ” Wong Sun, 371 U.S. at 487, 83 S.Ct. at 417, 9 L.Ed.2d at 455 (citation omitted). The government has not shown nor does it argue" }, { "docid": "4243714", "title": "", "text": "failing to suppress the evidence introduced against her pursuant to our remand instruction. Specifically, Defendant argues that the government failed to demonstrate by a preponderance of the evidence that the independent source and inevitable discovery exceptions to the exclusionary rule applied to the testimonial evidence the government introduced against her at trial. “A district court’s ruling on a motion to suppress based upon live testimony at a suppression hearing is accepted unless clearly erroneous or influenced by an incorrect view of the law.” United States v. Wilson, 36 F.3d 1298, 1303 (5th Cir.1994); see also United States v. Rinke, 778 F.2d 581, 589 (10th Cir.1985). We view the evidence “in the light most favorable to the party that prevailed below.” Wilson, 86 F.3d at 1303. However, we review questions of law de novo. Id. “Under the ‘fruit of the poisonous tree’ doctrine, the exclusionary rule bars the admission of physical evidence and live witness testimony obtained directly or indirectly through the exploitation of police illegality.” Hamilton v. Nix, 809 F.2d 463, 465 (8th Cir.), cert. denied, 483 U.S. 1023, 107 S.Ct. 3270, 97 L.Ed.2d 768 (1987) (citing Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 415-18, 9 L.Ed.2d 441 (1963)). The Court, however, has recognized three exceptions to the exclusionary rule which permit the use of tainted evidence if the prosecution shows by a preponderance of the evidence, Nix v. Williams, 467 U.S. 431, 444 & n. 5, 104 S.Ct. 2501, 2509 & n. 5, 81 L.Ed.2d 377 (1984), that the evidence sought to be introduced was or could have been secured “by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417-18. Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments may be admitted if it: (1) has but an attenuated link to the underlying illegality, United States v. Ceccolini, 435 U.S. 268, 273-79, 98 S.Ct. 1054, 1058-62, 55 L.Ed.2d 268 (1978); (2) derived from a source independent of the illegal conduct, Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40" }, { "docid": "22841688", "title": "", "text": "is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417 (quoting R. Maguire, Evidence of Guilt 221 (1959)). Whether evidence is sufficiently distinguishable turns on the application of three closely related but analytically distinct exceptions to the exclusionary rule. First, the challenged evidence will be admissible under the “inevitable discovery” doctrine if it inevitably or ultimately would have been discovered by lawful means without reference to the police misconduct. Nix, 467 U.S. at 444, 104 S.Ct. at 2509. Second, under the “independent source” doctrine, the challenged evidence will be admissible if it derived from a lawful source independent of the illegal conduct. Silverthorne, 251 U.S. at 392, 40 S.Ct. at 183. Third, the challenged evidence will be admissible under the “attenuation” doctrine if the causal connection between the constitutional violation and the discovery of the evidence has become so attenuated as to dissipate the taint. Ceccolini, 435 U.S. at 273, 98 S.Ct. at 1058. We hold that the testimony of Brunilda Gonzalez and Danny Gonzalez was properly admitted under the inevitable discovery exception and the independent source exception to the exclusionary rule, respectively. Although the inevitable discovery exception has been recognized in varying forms by federal courts for many years, see, e.g., Wayne v. United States, 318 F.2d 205 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d 86 (1963), the Supreme Court for the first time invoked it as a basis for the admission of evidence only recently in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In considering whether certain evidence was admissible as fruit of an illegal interroga tion, the Supreme Court relied on the basic principles underlying the exclusionary" }, { "docid": "22841686", "title": "", "text": "which held that “the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence.” Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Thus, verbal evidence, including live-witness testimony, which is derived from an unlawful invasion may be “no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Although the cases which mark the origin and development of the “fruit of the poisonous tree” doctrine involved violations of the Fourth Amendment guarantee against searches and seizures, see, e.g., Silverthorne, 251 U.S. 385, 40 S.Ct. 182; Wong Sun, 371 U.S. 471, 83 S.Ct. 407, the doctrine also applies to the fruits of evidence obtained in violation of an accused’s Sixth Amendment right to counsel, see, e.g., United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); as well as violations of the Fifth Amendment. See, e.g., Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The Supreme Court has emphasized, however, that the exclusionary rule “has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048-49, 49 L.Ed.2d 1067 (1976). In situations where the exclusionary rule is applicable, the Court has “declined to adopt a ‘per se or “but for” rule’ that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest [or interrogation].” United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978). The exclusionary doctrine bars evidence that has been illegally obtained only if the “fruit” is sufficiently connected to the “poisonous tree”: We need not hold that all evidence" }, { "docid": "23600647", "title": "", "text": "Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). In Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court further extended the exclusionary rule to encompass evidence that is the indirect product or “fruit” of unlawful police conduct. Thus, in the instant case, any “fruits” of the portion of the police search that exceeded the scope of the private search — including any disks that the private searchers did not examine but were viewed by the police prior to the issuance of the warrant — should have been excluded at trial. However, evidence that is otherwise suppressible under the exclusionary rule is admissible if the connection between the alleged illegality and the acquisition of the evidence is so attenuated as to dissipate the “taint” of the unlawful police activity. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). In applying this principle, the Court has crafted a number of exceptions to the exclusionary rule. These exceptions are designed to ensure that the exclusionary rule puts police “in the same, not a worse position than they would have been in if no police error or misconduct had occurred.” Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (emphasis in original). In United States v. Miller, 666 F.2d 991, 995 (5th Cir.1982), this court outlined the three primary exceptions to the exclusionary rule. Evidence will be admissible despite the exclusionary rule if: (1) it “derives from an independent source,” (2) it “has an attenuated link to the illegally secured evidence,” or (3) it “inevitably would have been discovered during police investigation without the aid of the illegally obtained evidence.” Id. (internal citations omitted). The government argues that the “independent source” exception to the exclusionary rule is applicable in the instant case. The government’s position is that the magistrate judge’s decision to issue a warrant permitting police to search the computer and the disks was independent of the pre-warrant searches — the same warrant would" }, { "docid": "22841685", "title": "", "text": "which bars the admission of evidence obtained in violation of the Constitution, extends beyond the direct products of police misconduct to evidence derived from the illegal conduct, or “fruit of the poisonous tree.” Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). The government argues that the Moulton decision is limited to the exclusion only of defendant’s own statements obtained in violation of his Sixth Amendment right. See id., 474 U.S. at 179, 106 S.Ct. at 488-89. To be sure, the Moulton decision neither involved nor discussed other forms of evidence. The clear implication of the Moulton decision, however, is that courts should apply the exclusionery doctrine under these circumstances. See, e.g., 474 U.S. at 190-92, 106 S.Ct. at 494-95 (Burger, J., dissenting) (arguing that application of the exclusionary rule by the majority made little sense as demonstrated by weighing the costs and benefits of excluding relevant and trustworthy evidence). Assuming the primary illegality can be established, we are persuaded by the host of other Supreme Court decisions which held that “the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence.” Nix v. Williams, 467 U.S. 431, 441, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (citing Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920)). Thus, verbal evidence, including live-witness testimony, which is derived from an unlawful invasion may be “no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). Although the cases which mark the origin and development of the “fruit of the poisonous tree” doctrine involved violations of the Fourth Amendment guarantee against searches and seizures, see, e.g., Silverthorne, 251 U.S. 385, 40 S.Ct. 182; Wong Sun, 371 U.S. 471, 83 S.Ct. 407, the doctrine also applies to the fruits of evidence obtained in violation of an accused’s Sixth Amendment right to counsel, see, e.g., United" }, { "docid": "2990860", "title": "", "text": "about applying Nix to cases such as this one. The source of our doubts should be explained. In considering Nix, it is helpful to begin by stating some general principles regarding the exclusionary rule as it has developed in the context of the Fourth Amendment. The first is that an article discovered or an observation made during the course of an illegal search or seizure— “primary evidence” — may not be admitted into evidence when a party with standing objects to its introduction. See, e.g., Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Segura v. United States, 468 U.S. 796, 804-05, 104 S.Ct. 3380, 3385, 82 L.Ed.2d 599 (1984); United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984); United States v. Chadwick, 433 U.S. at 11-13, 97 S.Ct. at 2483-84; Chimel v. California, 395 U.S. at 767, 89 S.Ct. at 2042; Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); 4 W. La Fave, Search and Seizure § 11.4, at 369 (1987). For evidence discovered after the primary illegality— “derivative evidence” — the question initially is one of “taint.” Is the evidence the “fruit of the poisonous tree” because it was obtained by exploiting the Fourth Amendment violation? See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Or is it untainted because it stems from a source wholly independent of the constitutional violation? See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 972, 22 L.Ed.2d 176 (1969). Nix v. Williams involved only derivative evidence. Two lines of investigation were converging on the same evidence — the body of a ten-year-old girl." } ]

[ { "docid": "18505848", "title": "", "text": "540, 567 (dissenting opinion), . In a very recent case, the Supreme Court of New Mexico recognized the inadequacy of the right-wrong test, and adopted what it called an “extension of the M’Naghten Rules.” Under this extension, lack of knowledge of right and wrong is not essential for acquittal “if, by reason of disease of the mind, defendant has been deprived of or lost the power of his will * * State v. White, N.M., 270 P.2d 727, 730. . Deutsch, The Mentally Ill in America 400 (2d ed.1949); Keedy, Irresistible Impulse as a Defense in Criminal Law, 100 U. of Pa.L.Rev. 956, 992 (1952). . Professor John Whitehorn of the Johns Hopkins Medical School, who recently prepared an informal memorandum on this subject for a Commission on Legal Psychiatry appointed by the Governor of Maryland, has said: “Psychiatrists are challenged to set forth a crystal-clear statement of what constitutes insanity. It is impossible to express this adequately in words, alone, since such diagnostic judgments involve clinical skill and experience which cannot wholly be verbalized. * * * The medical profession would be baffled if asked to write into the legal code universally valid criteria for the diagnosis of the many types of psychotic illness which may seriously disturb a person’s responsibility, and even if this were attempted, the diagnostic criteria would have to be rewritten from time to time, with the progress of psychiatric knowledge.” Quoted in Guttmacher & Weihofen, Psychiatry and the Law 419-20 (1952). . “ * * * the legal profession were invading the province of medicine, and attempting to install old exploded medical theories in the place of facts established in the progress of scientific knowledge.” State v. Pike, 1870, 49 N.H. 399, 438. . Royal Commission Report 114. And see State v. Jones, 1871, 50 N.H. 369, 392-393. . Keedy, Irresistible Impulse as a Defense in Criminal Law, 100 U. of Pa.L. Rev. 956, 992-93 (1952). . See, e. g., Taylor v. United States, 1895, 7 App.D.C. 27, 41-44, where we rejected “emotional insanity” as a defense, citing with approval the following from the" } ]

[ { "docid": "22874684", "title": "", "text": "backbone of the charge given by the court below was the knowledge of right and wrong by the accused, the so-called “right-and-wrong” test of M’Naghten. We think that there are cogent reasons why the M’Naghten Rules should not be followed or applied today in the courts of the United States. The M’Naghten Rules are to be found, as we have said, in 8 English Reports, Reprint, at p. 722 et seq. (1843), and were engendered by the excitement and fear which grew out of the acquittal of Daniel M’Naghten who had attempted to assassinate Sir Robert Peel, Prime Minister of England, but who instead shot Peel’s private secretary, Drummond, because M’Naghten had mistaken Drummond for Peel. The offense against Drummond followed a series of attempted assassinations of members of the English Royal House, including Queen Victoria herself, and attacks on the Queen’s ministers. Some of these were considered to have grown out of Anti-Corn-Law League plots. When M’Naghten was acquitted at his trial, The Queen v. M’Naghten, 4 State Trials, N.S. 923 (1843), public indignation, led by the Queen, ran so high that the Judges of England were called before the House of Lords to explain their conduct. A series of questions were propounded to them. Their answers, really an advisory opinion which were delivered by Lord Chief Justice Tindal for all fifteen Judges, save Mr. Justice Maulé, constitute what are now known as the M’Naghten Rules. These Rules have fastened themselves on the law of England and on the law of almost all of the States and on all of the federal courts save one. The earlier rule of English law, first established in Hadfield’s case, 27 State Trials 1281, in 1800, was in substance the product rule of Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, and of State v. Pike, 49 N.H. 399, which has been in effect in New Hampshire for over ninety years. The M’Naghten Rules, which applied primarily the test of knowing the difference between right and wrong, are set out in the ancient book, written by William Lambard of Lincolns" }, { "docid": "23076748", "title": "", "text": "an open one. Whether it is or is not an issue amenable to decision by a Court of Appeals depends on an interpretation of the two Supreme Court opinions in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499, and 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750. In the first Davis case the Supreme Court reversed a conviction of murder on the ground of error in the instruction on the burden of proof in respect to the matter of insanity. Al though not necessary to the decision, the Supreme Court discussed the nature of the substantive legal test of insanity, referring to M’Naghten’s Case, and noting that one cannot be held criminally responsible “unless at the time he had sufficient mind to comprehend the criminality or the right and wrong of such act,” and that “the crime of murder involves sufficient capacity to distinguish between right and wrong.” Upon remand of the case, Davis was again convicted, and on appeal the Supreme Court affirmed. The instruction on insanity given in the second trial was identical to that given in the first trial and is exactly a portion of the instruction given by the court below in the instant matter. (Tr. 215.) It provides: “The term ‘insanity’ as used in this defense means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, and are beyond his control.” The Supreme Court held that this charge “under the circumstances of this case, was in no degree prejudicial to the rights of the defendant.” The Supreme Court thus at least tacitly approved the test as being either incapacity" }, { "docid": "23445520", "title": "", "text": "definition involving consideration of volitional capacity even where there is cognitive capacity. Hence, we need not be concerned with the traditional or pure M’Naghten definition, which deals only with cognitive capacity. The issues presented here are whether the American Law Institute definition is to be preferred over the Davis definition, used in the instant trial, and whether Durham or some other definition which is not concerned with the particular capacity of the defendant which has been impaired or destroyed is to be preferred over the type of definition which embodies a cognitive volitional formula. American Law Institute (ALI) definition “(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law. “(2) As used in this article, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” Comparing the (ALI) definition with the Davis definition, one perceives the following points of difference: (1) Davis as given in this case refers to “perverted and deranged condition of a person’s mental and moral faculties,” where ALI refers to “mental disease or •defect” (not including “an abnormality manifested only by repeated criminal or otherwise anti-social conduct”). (2) Davis as given in this case refers to one who is “incapable of distinguishing between right and wrong, or incapable of knowing the nature of the act he is committing” where ALI refers to one who “lacks substantial capacity * * * to appreciate the criminality [wrongfulness] of his conduct.” (3) Davis, as given in this case, refers to one “who is conscious of the nature of the act he is committing and able to distinguish between right and wrong and knows that the act is wrong, yet his will * * * the governing power of his mind, has been so completely destroyed that his actions are not subject to it, but are beyond his control,” where ALI refers to" }, { "docid": "22435956", "title": "", "text": "heretofore has consistently and specifically refused to follow the unembellished “product of mental disease or mental defect” standard, first enunciated in New Hampshire a century ago, State v. Pike, 49 N.H. 399 (1870), and adopted for the District of Columbia in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), and then so vigorously contested in Durham’s numerous progeny. Voss v. United States, 259 F.2d 699, 703 (8 Cir.. 1958); Dusky v. United States, 271 F.2d 385, 394, 401 (8 Cir. 1959), reversed on other grounds 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Dusky v. United States, supra, p. 759 of 295 F.2d. We adhered to this rejection in Feguer, p. 243 of 302 F.2d. See Carter v. United States, 332 F.2d 728, 729 (8 Cir. 1964), cert. denied 379 U.S. 841, 85 S.Ct. 79, 13 L.Ed.2d 47. 2. The origin, history, application, and variations of M’Naghten have been reviewed in detail adequately and at length in many places, as, for example, Durham v. United States, supra, pp. 869-874 of 214 F.2d, and United States v. Currens, 290 F.2d 751, 763-767 (3 Cir. 1961), (and now United States v. Freeman, 357 F.2d 606, 615-622 (2 Cir. 1966)). They need no further and repetitive recital by us. 3. The Supreme Court of the United States has approved charges embracing M’Naghten and irresistible impulse (perhaps preferably to be described in terms of uncontrollable.acts) and certainly thus far has not disapproved that approach to the problem of criminal responsibility. Davis v. United States, 160 U.S. 469, 476-478, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Davis v. United States, 165 U. S. 373, 378, 17 S.Ct.-;360, 362, 41 L.Ed. 750 (1897), where -the Court said that-such a charge “was in no degree prejudicial to the rights of the defendant”; Hotema v. United States, 186 U.S. 413, p. 420, 22 S.Ct. 895, p. 898, 46 L.Ed. 1225 (1902), where the Court said, that the whole charge “properly laid down the law in regard to the responsibility of the defendant on account of his alleged mental condition” and where the Court, pp." }, { "docid": "23202224", "title": "", "text": "act he is committing; or, even where a person is conscious of the nature of the act he is committing, and is able to distinguish between right and wrong, yet his will — the governing power of his mind — has been so completely destroyed that his actions are not subject to it, but are beyond his control. “For the purpose of throwing light upon the mental condition of the accused at the time of the alleged offense, the Jury may consider evidence of his mental state both before and after that time. “Temporary insanity, as well as insanity of longer duration, is recognized by the law. If the Jury has a reasonable doubt, from the evidence in the case, whether the defendant was sane at the time of the alleged offense, he should be acquitted, even though it may appear that he was sane at earlier and later times.” This instruction is supported by dictum from the last time (1897) the United States Supreme Court considered an insanity charge. See Davis v. United States (I), 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and Davis v. United States (II), 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750 (1897). It is a variation of the classic M’Naghten right-wrong test: “To establish a defense on the ground of insanity, it must be clearly proved that at the time of committing the act, the party accused was labour-ing under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know it was wrong.” Daniel M’Naghten’s Case, 8 Eng.Rep. 718, 722 (H.L. 1843). A Supreme Court holding directly in point on the issue of criminal responsibility would, of course, foreclose our consideration of any alternative. But three factors weigh strongly against the Davis cases being regarded as such specific authority. First, the advance of scientific knowledge in the field of psychiatry since 1897 is itself sufficient to render inapplicable any case decided without benefit of modern" }, { "docid": "22076916", "title": "", "text": "to live on long after more rational solutions have been uncovered. “In short, while our approval of the American Law Institute’s formulation is unequivocal and unreserved, we proscribe no other form of words which may appear more appropriate in a given case now or in cases generally in the future.” 393 F.2d at 926-927. While we share the spirit which moved the Fourth Circuit, through Chief Judge Haynsworth, to make its comments, we think it unnecessary expressly to adopt the quoted language. If, at some future time, we should become convinced that some new and more satisfactory test should supplant that which we herein adopt, we shall, of course, accept it. Meanwhile, we think it desirable that our opinion contain nothing permitting an interpretation inconsistent with our intention now to supply our district courts with precise guidelines. . Additionally, a convicted federal prisoner upon expiration of his sentence may be entrusted to state authorities. 18 U.S.C. §§ 4243, 4247-4248. . M’Naghten test from Daniel M’Naghten’s Case, 8 Eng.Rep. 718 (H.L. 1843), in form approved by this circuit: “ ‘Insane,’ as here used, means such a perverted and deranged condition of a person’s mental and moral faculties as to render him either incapable of distinguishing between right and wrong, or capable of knowing the nature of the act he is committing; or where he is conscious of the nature of the act he is committing and able to distinguish between right and wrong, and knows the act is wrong, yet his will, by which I mean the governing power of his mind, has been so completely destroyed that his actions are not subject to it, but are beyond his control.” Maxwell v. United States, 368 F.2d 735, 741 n. 7 (9th Cir. 1966). The court indicated at p. 742 that, although the “uncontrollable act” portion of the test was not clearly set forth, this was not material because no evidence had been introduced to support it. Judge Hamley (who wrote Maxwell), in his dissent in Ramer v. United States, calls attention to a departure in the quoted language from the test" }, { "docid": "22435955", "title": "", "text": "jury here must have placed great emphasis on the word “impulse”; and that M’Naghten and irresistible impulse should be rejected. This, of course, as both sides recognizes, is not a new issue for this court or, indeed, by now, for most American tribunals. Because, however, criminal responsibility in the federal courts “is a rule of decision”, Wion v. United States, 325 F.2d 420, 425 (10 Cir. 1963), cert. denied 377 U.S. 946, 84 S.Ct. 1354, 12 L.Ed.2d 309; United States v. Freeman, 357 F.2d 606, 614 (2 Cir. 1966), it is not inappropriate that, sitting en banc, we examine it once again. We last fully considered the issue in Feguer v. United States, 302 F.2d 214, 242-245 (8 Cir. 1962), cert. denied 371 U.S. 872, 83 S.Ct. 123, 9 L.Ed.2d 110, a capital case. There we observed, as we had also done earlier in Dusky v. United States, 295 F.2d 743, 759 (8 Cir. 1961), cert. denied 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536, the following: 1. This court, as nearly all others, heretofore has consistently and specifically refused to follow the unembellished “product of mental disease or mental defect” standard, first enunciated in New Hampshire a century ago, State v. Pike, 49 N.H. 399 (1870), and adopted for the District of Columbia in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), and then so vigorously contested in Durham’s numerous progeny. Voss v. United States, 259 F.2d 699, 703 (8 Cir.. 1958); Dusky v. United States, 271 F.2d 385, 394, 401 (8 Cir. 1959), reversed on other grounds 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824; Dusky v. United States, supra, p. 759 of 295 F.2d. We adhered to this rejection in Feguer, p. 243 of 302 F.2d. See Carter v. United States, 332 F.2d 728, 729 (8 Cir. 1964), cert. denied 379 U.S. 841, 85 S.Ct. 79, 13 L.Ed.2d 47. 2. The origin, history, application, and variations of M’Naghten have been reviewed in detail adequately and at length in many places, as, for example, Durham v. United States, supra, pp. 869-874 of 214" }, { "docid": "20086073", "title": "", "text": "v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 362, 41 L.Ed. 750. There the Supreme Court lent its sanction to the following definition of insanity: “The term ‘insanity,’ as used in this defense, means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it, and able to distinguish between right and wrong, and know that the act is wrong, yet his will — by which I mean the governing power of his mind — -has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.” (Emphasis supplied.) In the District of Columbia, the doctrine of the Davis case was expressly-applied in Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654, and was consistently followed since that time. In 1954, the Court of Appeals for the District of Columbia, in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, exhaustively reconsidered the subject and accepted in substance the vague standard that had been approved in New Hampshire in 1870, to the effect that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. The New Hampshire test and that adopted in the Durham case are precisely the same, except that the Durham case extended it to include mental defects; whereas the New Hampshire doctrine seems to have been originally limited to mental diseases. In the Durham ease, the court ruled that in criminal cases in which the issue of mental competency arises, the jury should be instructed in accordance with this general formula, and reversed a conviction because the issue had been determined at the trial in accordance with the two definitions previously adopted by the Federal courts. The Court of Appeals explained, however, that the new criterion is not to supersede the two earlier standards, but is" }, { "docid": "23628800", "title": "", "text": "and know that the act is wrong, yet his will — by which I mean the governing power of his mind— has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.’ “The Court, commenting upon this portion of the charge of the trial court, said: ‘Although the court, in addition to this specific language, enlarged upon the Question, in its charge in reference to the matter of insanity covering several pages of the record, and containing quotations from many adjudged cases, we find nothing which qualifies or restricts the definition as above quoted.’ Thus the court clearly indicated that, had the portion of the charge above quoted been limited or restricted in other portions of the charge, it would have been regarded as error.” Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 550, 70 A.L.R. 654. . “It is the contention of the defense that the mental and emotional qualities of petitioner were of such a level at the time of the crime that he was incapable of deliberation and premeditation although he was then sane in the usual legal sense. He knew right from wrong. See M’Naghten Rules, 10 C. & F. 200, 210. His will was capable of controlling his impulses. Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654.” Fisher v. United States, 328 U.S. 463, 466, 66 S.Ct. 1318, 1320, 90 L.Ed. 1382. . Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430. . “Matters relating to law enforcement in the District are entrusted to the courts of the District. Our policy is not to interfere with the local rules of law which they fashion, save in exceptional situations where egregious error has been committed.” Fisher v. United States, 328 U.S. 463, 476, 66 S.Ct. 1318, 1325, 90 L.Ed. 1382. . Davis v. United States, 165 U.S. 373, 375, 17 S.Ct. 360, 41 L.Ed. 750, 160 U.S. 469, 486, 16 S.Ct. 353, 40 L.Ed. 499; Lee v. United States, 5 Cir., 91 F.2d 326, 330-331." }, { "docid": "22076855", "title": "", "text": "66 (1967). See also State v. Schantz, 98 Ariz. 200, 403 P.2d 521, 528 (1965). Compare State v. Malumphy, 105 Ariz. 200, 461 P.2d 677 (Dec. 3, 1969). At one time, it was suggested that our reexamination of the M’Naghten rules was foreclosed by decisions of the Supreme Court. After observing, in Sauer v. United States, 241 F.2d 640 (9th Cir.), cert. denied, 354 U.S. 940, 77 S.Ct. 1405, 1 L.Ed.2d 1539 (1957), that “it is very doubtful that the question is an open one,” we ventured a belief that the issue was foreclosed by the Supreme Court since, at the time of Sauer, the only Court of Appeals to escape the hegemony of the M’Naghten rules had been the District of Columbia Circuit in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Nevertheless, after our Sauer decision, one Circuit after another has rejected the M’Naghten rules and has persuasively demonstrated that the Supreme Court has never set a fixed standard of criminal responsibility. See generally Ramer v. United States, 390 F.2d 564, 582 (9th Cir. 1968) (Hamley, dissenting). The M’Naghten rules have to date been rejected as an exclusive test by, in addition to the District of Columbia Circuit, the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits. Thus the doubts raised by Sauer stand alone against the subsequent avalanche of authoritative opinions. Now, agreeing with the reasoning set forth in these opinions, and in light of the acknowledged shortcomings of the M’Naghten and irresistible impulse or uncontrollable act rules, we proceed to a brief review of alternative tests of criminal responsibility. The District of Columbia Circuit, in Durham v. United States, supra, adopted a test not unlike that of State v. Pike, 49 N.H. 399 (1870), in which there had been the first judicial departure from the M’Naghten rules. Under the Durham test, a defendant could be found not guilty by reason of insanity if his act were the product of a mental disease or defect. 214 F.2d at 875. When we adhered to the M’Naghten rules in Sauer, the only alternative rule" }, { "docid": "20086070", "title": "", "text": "Case, 10 Clark & Finnelly 200, 8 Eng. Rep. 718, decided by the House of Lords in 1848. In that opinion the following rule was enunciated: “ * * * to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong. * * *» The following additional principle was also announced: “The fourth question which your Lordships have proposed to us is this: — ‘If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?’ To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment.” For many years the doctrines of M’Naghten’s Case were universally followed. In 1870, however, an exception arose in New Hampshire where the appellate court approved a general instruction given by the trial judge in a homicide case merely to the effect that whether the defendant had a mental disease, and whether the killing was the product of such disease, were questions of fact for the jury, State v. Pike, 49 N.H. 399, 407-408. For a long time New Hampshire stood in solitary isolation on this point. A search of the authorities fails to disclose that any other jurisdiction" }, { "docid": "23445518", "title": "", "text": "be a basis for forfeiture while commission of a serious crime while in custody and in respect to such custody could not be. This would lead to an absurd result.” (Citations omitted) i (4) Definition of the defense of insanity. The district court defined the defense of insanity, as follows: “ ‘Insane,’ as used here means such a perverted and deranged condition of a person’s mental and moral faculties as to render him either “(1) incapable of distinguishing between right and wrong, or incapable of knowing the nature of the act he is committing; or “(2) where he is conscious of the nature of the act he is committing and able to distinguish between right and wrong and knows that the act is wrong, yet his will, by which I mean the governing power of his mind, has been so completely destroyed that his actions are not subject to it, but are beyond his control.” This definition is the same in substance as the definition which the Supreme Court approved as not prejudicial to the defendant in Davis v. United States. It differs from the traditional pure M’Naghten definition in that it includes, as an alternative element, a defendant’s lack of power, by reason of mental illness or defect, to control his conduct, i. e., lack of volitional capacity. The Supreme Court did not say in Davis that a pure M’Naghten definition, concerned only with cognitive capacity, i. e. whether defendant had capacity to know the nature and quality of his acts and distinguish between right and wrong, would have been prejudicial. It is usually assumed, however, that the court would so hold, and that federal courts are committed to some type of definition in which lack of volitional capacity is an alternative element (like Davis and the American Law Institute definition) or to one, such as Durham, which is not concerned with the particular way by which mental illness or defect operates to cause the defendant to engage in offensive conduct. This court has not specifically approved a particular definition, but it is clearly committed to some type of" }, { "docid": "7212682", "title": "", "text": "test. The right and wrong test, prevailing in most jurisdictions in this country, rests on the proposition of cognition, that a defendant is not deemed to be criminally responsible if he does not know the nature of his act, or the difference between right and wrong with respect to that act. This rule has its modern origin in Mc-Naghten’s Rule, 1843, 10 Cl. and F. 200, 210; 8 Eng.Rep. 718, 722 where the House of Lords, in response to questions propounded, stated: “ * * * to establish a defense on the ground of insanity it must be clearly proved that at the time of committing the act, the party accused was labouring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.” Many jurisdictions have added the so-called irresistible impulse test to the right and wrong test, just as was the case in Davis. It rests on the proposition of volition. It is perhaps a misnomer because it includes acts resulting from premeditation as well as from sudden impulse, but it is applicable when one understands the nature and consequences of his act and appreciates the wrongness of the act, but, in consequence of a mental abnormality, is forced to its execution by an impulse which he is powerless to control. Another and different standard was laid down in State v. Pike, N.H., 1870, 49 N.H. 399. It was that an accused is not criminally responsible “if the unlawful act was offspring or product of mental disease.” The Court of Appeals for the District of Columbia in Durham, supra, adopted a standard, not unlike the New Hampshire rule in Pike, that “an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect.” This holding set off a national juridical discourse on the subject. That circuit had theretofore followed the right and wrong test, plus irresistible impulse. No court has" }, { "docid": "20086072", "title": "", "text": "ever followed the New Hampshire case prior to 1954, — a period of eighty-four years. In 1954 the District of Columbia reverted to the New Hampshire doctrine, as will be shown hereafter. With the progress of psychiatry, the view gradually developed in some quarters that there were categories of insanity not comprised within either of the two formulas of M’Naghten’s Case, but that should receive consideration in criminal law. Accordingly, an additional definition of insanity evolved. The test applicable to this new group of cases has received the picturesque and somewhat inaccurate appellation of “irresistible impulse”. The term “impulse” as used in this connection may be too narrow and perhaps misleading. This additional test is whether the defendant was suffering from a mental disease that rendered him unable to control his will and to adhere to the right, even though, he may have known the difference between right and wrong. If so, he should not be held responsible for a crime committed by him. For the Federal courts this new criterion was approved in Davis v. United States, 165 U.S. 373, 378, 17 S.Ct. 360, 362, 41 L.Ed. 750. There the Supreme Court lent its sanction to the following definition of insanity: “The term ‘insanity,’ as used in this defense, means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it, and able to distinguish between right and wrong, and know that the act is wrong, yet his will — by which I mean the governing power of his mind — -has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.” (Emphasis supplied.) In the District of Columbia, the doctrine of the Davis case was expressly-applied in Smith v. United States, 59 App.D.C. 144, 36 F.2d 548, 70 A.L.R. 654, and was consistently followed since that time. In 1954, the Court of Appeals for the" }, { "docid": "22874685", "title": "", "text": "led by the Queen, ran so high that the Judges of England were called before the House of Lords to explain their conduct. A series of questions were propounded to them. Their answers, really an advisory opinion which were delivered by Lord Chief Justice Tindal for all fifteen Judges, save Mr. Justice Maulé, constitute what are now known as the M’Naghten Rules. These Rules have fastened themselves on the law of England and on the law of almost all of the States and on all of the federal courts save one. The earlier rule of English law, first established in Hadfield’s case, 27 State Trials 1281, in 1800, was in substance the product rule of Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, and of State v. Pike, 49 N.H. 399, which has been in effect in New Hampshire for over ninety years. The M’Naghten Rules, which applied primarily the test of knowing the difference between right and wrong, are set out in the ancient book, written by William Lambard of Lincolns Inn, Eirenarcha or of the Office of the Justices of Peace, reprinted at least seven times between 1582 and 1610. At “Cap. 21.218” of this work Lambard stated: “If a mad man or a naturall foole, or a lunatike in the time of his lunacie, or a childe y apparently hath no knowledge of good nor euil do-kill a ml, this is no felonious acte, nor any thing forfeited by it * * * for they canot be said to haue any understanding wil. But if upo examinatio it. fal out, y they knew what they did, & y it. was ill, thé seemth it to be otherwise.” It will be observed that Lambard laid down as his test of criminal responsibility “knowledge of good or evil”. The phraseology quoted is as antique and creaking as the doctrine of criminal responsibility it announces. For the words “knowledge of good or evil”, the phrase “knowledge of right and wrong” was substituted. This essential principle, embodied in the M’Naghten Rules, is not 118 years old. The substance" }, { "docid": "20086071", "title": "", "text": "partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment.” For many years the doctrines of M’Naghten’s Case were universally followed. In 1870, however, an exception arose in New Hampshire where the appellate court approved a general instruction given by the trial judge in a homicide case merely to the effect that whether the defendant had a mental disease, and whether the killing was the product of such disease, were questions of fact for the jury, State v. Pike, 49 N.H. 399, 407-408. For a long time New Hampshire stood in solitary isolation on this point. A search of the authorities fails to disclose that any other jurisdiction ever followed the New Hampshire case prior to 1954, — a period of eighty-four years. In 1954 the District of Columbia reverted to the New Hampshire doctrine, as will be shown hereafter. With the progress of psychiatry, the view gradually developed in some quarters that there were categories of insanity not comprised within either of the two formulas of M’Naghten’s Case, but that should receive consideration in criminal law. Accordingly, an additional definition of insanity evolved. The test applicable to this new group of cases has received the picturesque and somewhat inaccurate appellation of “irresistible impulse”. The term “impulse” as used in this connection may be too narrow and perhaps misleading. This additional test is whether the defendant was suffering from a mental disease that rendered him unable to control his will and to adhere to the right, even though, he may have known the difference between right and wrong. If so, he should not be held responsible for a crime committed by him. For the Federal courts this new criterion was approved in Davis" }, { "docid": "23076749", "title": "", "text": "given in the second trial was identical to that given in the first trial and is exactly a portion of the instruction given by the court below in the instant matter. (Tr. 215.) It provides: “The term ‘insanity’ as used in this defense means such a perverted and deranged condition of the mental and moral faculties as to render a person incapable of distinguishing between right and wrong, or unconscious at the time of the nature of the act he is committing, or where, though conscious of it and able to distinguish between right and wrong and know that the act is wrong, yet his will, by which I mean the governing power of his mind, has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, and are beyond his control.” The Supreme Court held that this charge “under the circumstances of this case, was in no degree prejudicial to the rights of the defendant.” The Supreme Court thus at least tacitly approved the test as being either incapacity (resulting from some mental disease or defect) to distinguish between right and wrong with respect to the act, or, although able to so distinguish, the inability to refrain from committing the act. There is nothing in subsequent Supreme Court opinions on this question which casts doubt on this construction of the Davis cases. Indeed, they serve only to fortify the view here expressed. C. The Definition of Insanity in Other Circuits. In addition, the only other Circuit which has had an opportunity to consider this question since the Durham decision, the Fifth Circuit, shares our belief that we are not free to revise the law of criminal responsibility even if we were disposed to do so. Howard v. United States, 5 Cir., 232 F.2d 274, 275. In light of the ever increasing outcry for modification of the conventional rules of criminal responsibility, perhaps it would be in order to observe the structure of the Federal judiciary system. The Court of Appeals is the intermediate court in the Federal judicial hierarchy; the Supreme Court the court" }, { "docid": "1322326", "title": "", "text": "9, 11 (1982). The current reappraisal of the law of insanity began with the Hinckley verdict. The modern law of insanity has its genesis in an equally celebrated attempted assasination and acquittal of the perpetrator. In 1843, Daniel M’Naghten killed British Prime Minister Robert Peel’s secretary while attempting to -shoot Peel. At a lengthy trial, M’Naghten presented evidence that he suffered from what today would be diagnosed as insane delusions of persecution, and the jury acquitted him on the basis of insanity. Reaction in British society was fierce and immediate, with Queen Victoria bringing the prestige of the monarchy to bear on an attempt to rectify the perceived injustice of the verdict. The judges of the common law courts were summoned into extraordinary session, where they formulated the familiar M’Naghten Rule defining the criminally insane individual as one who “was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was- wrong.” 8 Eng.Rep. 718, 722, 10 Clark & Fin. 200, 210 (1843). See generally Platt & Diamond, The Origins of the “Right and Wrong” Test of Criminal Responsibility and its Subsequent Develop ment in the United States: An Historical Survey, 54 Cal.L.Rev. 1227 (1966). The M’Naghten, or “right-wrong” test, was the prevailing rule for more than a century after its formation, and remains the sole test for insanity in a minority of the states. The M’Naghten Rule was supplemented in several jurisdictions by a test permitting acquittal when the defendant was driven by an irresistible impulse to commit the offense. See LaFave & Scott, Criminal Law § 37 (1972). Another attempt to modernize the M’Naghten rules was the Durham standard, which states that a defendant is not criminally responsible if his unlawful act was the product of a mental disease or defect. Durham v. United States, 214 F.2d 862, 874 (D.C.Cir.1954). Although Durham swept away the intellectual debris of a century, United States v. Freeman, supra, 357 F.2d" }, { "docid": "22874732", "title": "", "text": "If a person suffers from a mental disease or mental defect or mental illness and can still distinguish right from wrong, that does not exclude the possibility, does it. Doctor, that his conduct might still be the product of that mental disease, mental illness or mental defect? A. No, because they can vary from time to time.” [Transcript of Testimony p. 109] * $ $ $ $ “Q. All right, Doctor [Bowers], “Now, Doctor, are you able to express an opinion as to whether Donald Cur-rens’ conduct in September of 1958 relating to the transportation of this motor-vehicle and his past conduct, wherein he has been in some difficulty with the law, have been the product of his sociopathic-disturbance? A. Well, that is very likely; probably it was a ramification or outgrowth of his type of personality.”' [Transcript of Testimony p. 110] * * * * * “Q. Doctor [Bowers], could you conclude with the test, the right and wrong test, — that it is an adequate test for the determination of mental competency? “Mr. Snyder: I believe that is objected' to. I believe he has already said he-described a person’s personality and their behavior patterns and so on, and then, the Court applies the legal law to the-facts presented by the witness. I don’t believe that is a fair question to be asked1 of this witness and I therefore object. “The Court: That question has been debated by lawyers and doctors for a long time. I don’t think it is proper in this case. It might lead to a symposium, that would extend over weeks.” . Biggs, The Guilty Mind. Harcourt, Brace and Company 1955, pp. 101-107. . New Hampshire, under the influence of Dr. Isaac Ray, never adopted the M’Naghton Rules. See State v. Pike, 1870, 49 N.H. 399, and State v. Jones, 1871, 50 N.H. 369. . The Court of Appeals for the District of Columbia Circuit, having adhered to the M’Naghten Rules, plus the irresistible impulse doctrine, substituted what is now known as the Durham formula in Durham v. United States in 1954, 214 F.2d 862." }, { "docid": "20086074", "title": "", "text": "District of Columbia, in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L.R.2d 1430, exhaustively reconsidered the subject and accepted in substance the vague standard that had been approved in New Hampshire in 1870, to the effect that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. The New Hampshire test and that adopted in the Durham case are precisely the same, except that the Durham case extended it to include mental defects; whereas the New Hampshire doctrine seems to have been originally limited to mental diseases. In the Durham ease, the court ruled that in criminal cases in which the issue of mental competency arises, the jury should be instructed in accordance with this general formula, and reversed a conviction because the issue had been determined at the trial in accordance with the two definitions previously adopted by the Federal courts. The Court of Appeals explained, however, that the new criterion is not to supersede the two earlier standards, but is to be supplemental to them. In other words, the jury is to be instructed as to all three tests: whether the defendant was able to distinguish between right and wrong; whether the defendant was able to adhere to the right and to refrain from doing wrong; or whether the defendant was suffering from a mental disease or defect and the act in question was the product of such disease or defect. If the defendant’s offense were found to have been an insane act by the application of any one of these three tests, he would be entitled to a verdict of not guilty on the ground of insanity, Durham v. United States, 94 U.S.App.D.C. 228, 242, 214 F.2d 862, 45 A.L.R.2d 1430; Douglas v. United States, D.C.Cir., 239 F.2d 52. In the case at bar the jury was instructed in accordance with these views. A close analysis of the formula announced in State v. Pike, and Durham v. United States, supra, leads to the query whether it actually expands the other definitions or whether it" } ]

[ { "docid": "18073329", "title": "", "text": "not agree. The evidence must have been such as to justify the jury as reasonable men, in believing beyond a reasonable doubt that the defendant transported the woman or caused her to be transported from Birmingham, Alabama, to Bossier City, Louisiana. Even if, as the district judge said, the inference could fairly be drawn that he “came with her over here”, that would not be sufficient to show that he transported her or caused her to be transported. The Government concedes in brief: “It is true that the Government offered no direct evidence or proof that the defendant accompanied the victim or any direct proof as to the type of vehicle used in making the trip or that the defendant bought the victim a ticket or paid her transportation from Birmingham, Alabama to Bossier City, Louisiana, which said proof the Government was not required to offer according to the District Court, and with which view we are entirely in accord.” As before stated, we do not agree with that view. It seems to us contrary to the well settled rule that to sustain the conviction the inferences reasonably to be drawn from the evidence must not only be consistent with his guilt but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893. The evidence in this case is entirely consistent with the woman being the sole, willing, and exclusive cause of her own transportation. Indeed, at another point in its brief the Government makes the following remarkable concession: “It is true that there is not one scintilla of evidence to be found in the record tending to show that the defendant transported the victim with intent to induce her to engage in prostitution.” That in effect, we think, concedes that the Government failed to prove its charge upon this trial. The judgment is, therefore, reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. . “Well, let’s analyze things a little bit and see what the" } ]

[ { "docid": "22145127", "title": "", "text": "the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration.” The Fifth Circuit is aligned with the humane views thus expressed by Judge Prettyman. The rule in this Circuit has been stated as follows: “On a motion for judgment of acquittal the test is whether, taking the view most favorable to the Government, a reasonably-minded jury might accept the relevant evidence as adequate to support a conclusion of the defendant’s guilt beyond a reasonable doubt.” Lambert v. United States, 5 Cir., 1958, 261 F.2d 799, 801. The position of the Fifth Circuit becomes even clearer when we consider that, as a practical aid to its review of the sufficiency of the evidence to justify a finding of guilt beyond a reasonable doubt in circumstantial evidence cases, “ * * * this court has without wavering declared that the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of .guilt, and equally without wavering has applied it.” Panci v. United States, 1958, 256 F.2d 308, 312. The Government insists that the legal principle announced in the cases just cited has been rejected by the Supreme Court in the case of Holland v. United States, 1954, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150. However, this Court has ruled to the contrary in a case decided since the present case was argued and submitted. Cuthbert and Busby v. United States, 5 Cir., 1960, 278 F.2d 220. It was there pointed out that nothing said in. the Holland case, or in \"the authorities cited in that case, is at all inconsistent with the test to be applied in circumstantial evidence cases on motion for judgment of acquittal and ■on review of the denial of such motion as to whether the inferences reasonably to be drawn from the evidence were not only consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. It seems to" }, { "docid": "23506328", "title": "", "text": "the trial court erred in denying motions for acquittal, and to strike evidence which had been admitted subject to proof of the conspiracy, and which if stricken, would have rendered the case for the government insufficient. The trial court, in a carefully and patiently conducted semi-protracted trial held the government strictly to its burden. The agreement between Goodman, appellant and Bolton was relied on by the government as the basic component or central part in the conspiracy. Thereafter, in the main, all of the documentary evidence in any way relevant to the conspiracy, such as documents representing the various financial transactions between the Harold Corporation and the alleged conspirators, was admitted subject to a motion to strike if relevancy was not shown. The government took the position that the conspiracy was being made out by the introduction of the various pieces of evidence and that by the end of its case all of the pieces would fall in place and make out the conspiracy. It was against this background, and when the government rested, that the court denied the motion to strike the evidence, and the motion for acquittal. A motion for acquittal at the close of the case was also denied. This was a circumstantial evidence case from the standpoint of proof of the conspiracy, and as such must be reviewed in the light of the rule that the circumstantial evidence must be not only consistent with the guilt of the accused, but also inconsistent with every reasonable hypotheses of his innocence. Curtis v. United States, 5 Cir., 1961, 297 F.2d 639, and Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. This rule must be applied to a motion for judgment of acquittal and our review of it. But it is not whether in our opinion the evidence fails to exclude every hypotheses other than guilt but rather whether there was evidence from which the jury might reasonably so conclude. We said in Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 232: “In such eases the test to be applied on motion for judgment of" }, { "docid": "13759351", "title": "", "text": "to the Government, a reasonably-minded jury might accept the relevant evidence as adequate to support a conclusion of the defendant’s guilt beyond a reasonable doubt.” This is a circumstantial evidence case, and in such cases this Court clings to the test that the inferences reasonably to be drawn from the evidence must be not only consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. It is, however, important to note, as said in Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 232, that: “In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude.” Under the applicable test, there is no serious insistence on the insufficiency of the evidence to support the conviction of Mrs. Curtis under the second count, the substantive offense. In the automobile which she drove from Mexico across the International Bridge into Laredo, Texas, the customs agents found, stuffed horizontally between the springs of the rear seat and concealed in the left front and left rear door panels, 181 packages each containing approximately 8 to 9 ounces of marihuana. If the jury could reasonably conclude that her possession of that marihuana was a knowing possession, then that evidence was sufficient to authorize her conviction unless she explained that possession to the satisfaction of the jury. 21 U.S.C.A. § 176a, quoted in n. 1, supra. “Possession” must, of course, be a knowing possession. The statute itself requires that the smuggling be done “knowingly.” 21 U.S.C.A. § 176a. The learned district judge charged the jury in clear and explicit terms to that effect. The circumstances were such that the jury could properly conclude beyond a reasonable doubt that Mrs. Curtis knew that the marihuana was hid in the car which she was driving. Further, under the evidence, the jury could reasonably" }, { "docid": "13759350", "title": "", "text": "RIVES, Circuit Judge. Upon a jury’s verdict, the appellants, defendants, were, adjudged guilty under both counts of an indictment, the first charging conspiracy to smuggle marihuana into the United States and to transport and conceal the same in violation of Section 176a, Title 21 United States Code Annotated, and the second charging the substantive offense of smuggling into the United States 100 pounds of marihuana in violation of said section 176a. Arthur Athens (hereafter Athens) was committed to the custody of the Attorney General for a period of 10 years, and Alberta Edelstein Curtis (hereafter Mrs. Curtis) was sentenced for a period of 5 years. On appeal they insist that there is insufficient evidence to support the convictions, particularly that of Athens, and that various procedural errors require a reversal of the convictions of both appellants. I. Sufficiency of the Evidence. It is well settled that a conviction must be sustained if, taking the view most favorable to the Government, there is substantial evidence to support it. That means “whether, taking the view most favorable to the Government, a reasonably-minded jury might accept the relevant evidence as adequate to support a conclusion of the defendant’s guilt beyond a reasonable doubt.” This is a circumstantial evidence case, and in such cases this Court clings to the test that the inferences reasonably to be drawn from the evidence must be not only consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. It is, however, important to note, as said in Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 232, that: “In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt, but rather whether the jury might reasonably so conclude.” Under the applicable test, there is no serious insistence on the insufficiency of the evidence to support the conviction of Mrs. Curtis under the" }, { "docid": "819816", "title": "", "text": "purely circumstantial, the links in the chain must be clearly proven, and taken together must point not to the possibility or probability, but to the moral certainty of guilt. * * * [Emphasis supplied] [Id. at 184.] In a circumstantial evidence case, one inference cannot be founded upon another to sustain a conviction. See Byrth v. United States, 8 Cir. 1964, 327 F.2d 917; Wesson v. United States, 8 Cir. 1949, 172 F.2d 931. Furthermore, the facts must be inconsistent with every reasonable hypothesis except that of guilt. See Tri-Angle Club, Inc. v. United States, 8 Cir. 1959, 265 F.2d 829, 833; Salinger v. United States, 8 Cir. 1927, 23 F.2d 48. In the case last cited, the court held that where all the evidence is as consistent with innocence as with guilt, it is the duty of an appellate court to reverse a judgment of conviction against the accused. Id. at 52. See also, Sykes v. United States, 8 Cir. 1963, 312 F.2d 232, 235. This court held in Montoya v. United States, 5 Cir. 1968, 402 F.2d 847, 850: * * * In order to sustain a conviction in circumstantial evidence cases the inferences to be drawn from the evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence. Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1964); Duncan v. United States * * * [357 F.2d 195 (5th Cir. 1966)]. Other cases upholding and approving this rule are Rent v. United States, supra; Kassin v. United States, supra; McTyre v. United States, 5 Cir. 1954, 213 F.2d 65, 67; Williamson v. United States, 5 Cir. 1964, 332 F.2d 123, n. 11; Curtis v. United States, 5 Cir. 1961, 297 F.2d 639; McMillian v. United States, supra; and Barnes v. United States, 5 Cir. 1965, 341 F.2d 189. The inferences to be drawn from the evidence in this case are not inconsistent with every reasonable hypothesis of innocence; and considering them in the light most favorable to the government, which we must do, they are as consistent with innocence as" }, { "docid": "13927771", "title": "", "text": "In this context, Vick merely states the standard by which a trial judge considers a motion for judgment of acquittal and the standard by which an appellate court reviews the denial of such motion. In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. (citations omitted) In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Vick v. United States, supra, at p. 232. Since Vick, this same rule has been clearly stated and applied by Judge Hutchinson in Cuthbert v. United States, 5 Cir.1960, 278 F.2d 220, and by Judge Goldberg, in Sykes v. United States, 5 Cir.1967, 373 F.2d 607, cert. den. 386 U.S. 977, 87 S.Ct. 1172, 18 L. Ed.2d 138. In the case before us, the trial judge properly charged the jury that the Government had the burden of proving the guilt of the defendant beyond a reasonable doubt. The words “reasonable doubt” were clearly and accurately explained. With respect to appellant’s alibi that he was not a moonshiner but a fisherman, the able trial judge instructed the jurors that if there was a reasonable doubt as to whether defendant was present at the time and place of the alleged offenses, they should resolve such doubt in favor of the defendant and acquit him. In a circumstantial evidence case, such as this, where the jury has been properly instructed on the standard of reasonable doubt, as was done here, an additional charge that the evidence must exclude every reasonable hypothesis other than that of guilt is confusing and incorrect. Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. In addition" }, { "docid": "23088237", "title": "", "text": "the court discusses Ferris v. United States, 9 Cir., 40 F.2d 837, and the Karn case. It says of the Karn case, “In the Ferris case the appellate court found that the evidence did not permit of any reasonable hypothesis that would permit of an acquittal, and in the Kara case exactly the opposite was found -from a consideration of the evidence. Thus, it is seen that neither of these cases are in conflict with what we have said.” In the Ferris case we stated 40 F.2d at page 840, “Where, as in this case, circumstantial evidence is relied upon to support a. verdict of guilty, all the circumstances so relied upon must be consistent with each other, consistent with the hypothesis of guilt, and inconsistent with every reasonable hypothesis of innocence. * * * ” In that case we affirmed because the extended evidence, both direct and circumstantial, presents “a case consistent with guilt, and wholly inconsistent with any reasonable hypothesis of innocence.” In the Fifth Circuit, Judge Hutcheson’s opinion, in reversing in Kassin v. United States, 87 F.2d 183, 184, states the rule to be, “Circumstantial evidence can indeed forge a chain of guilt and draw if so tightly around an accused as almost to compel the inference of guilt as matter of law. Again, circumstantial evidence may forge the chain and draw it tight by legally justifiable, rather than absolutely compelling, inferences. In each case, however, where the evidence is purely circumstantial, the links in the chain must be clearly proven, and taken together must point not to the possibility or probability, but to the moral certainty of guilt. That is, the inferences which may reasonably be drawn from them as a whole must not only be consistent with guilt, but inconsistent with' every reasonable hypothesis of innocence. * * * ” In this, it follows the same holding in reversing in DeLuca v. United States, 5 Cir., 298 F. 412, 416. In the Eighth Circuit, Judge Sanborn’s opinion in Union Pac. Coal Company v. United States, 8 Cir., 173 F. 737, 740, followed in Grantello v." }, { "docid": "13927770", "title": "", "text": "fleeing therefrom; but that during the trial of appellant, two months later, the same officer testified that he saw three men fleeing the scene. An inspection of the jury charge which the able trial judge gave reveals that the jury was properly and extensively charged upon its role in judging witness credibility. Moreover, the record shows that upon cross examination of the officer in question, he acknowledged that there was this discrepancy in his testimony. The jury was fully aware that the veracity of this officer had been drawn in question and that his credibility was for them to decide, which they did. In support of his request for an additional charge on the subject of circumstantial evidence, the appellant relies heavily upon Vick v. United States, 5 Cir.1954, 216 F.2d 228. This reliance is misplaced. Vick does not teach that in a circumstantial evidence case it is proper for the trial judge to charge the jury that the Government’s evidence must be such as to exclude every reasonable hypothesis other than that of guilt. In this context, Vick merely states the standard by which a trial judge considers a motion for judgment of acquittal and the standard by which an appellate court reviews the denial of such motion. In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. (citations omitted) In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Vick v. United States, supra, at p. 232. Since Vick, this same rule has been clearly stated and applied by Judge Hutchinson in Cuthbert v. United States, 5 Cir.1960, 278 F.2d 220, and by Judge Goldberg, in Sykes" }, { "docid": "819817", "title": "", "text": "Cir. 1968, 402 F.2d 847, 850: * * * In order to sustain a conviction in circumstantial evidence cases the inferences to be drawn from the evidence must not only be consistent with guilt but inconsistent with every reasonable hypothesis of innocence. Vick v. United States, 216 F.2d 228, 232 (5th Cir. 1964); Duncan v. United States * * * [357 F.2d 195 (5th Cir. 1966)]. Other cases upholding and approving this rule are Rent v. United States, supra; Kassin v. United States, supra; McTyre v. United States, 5 Cir. 1954, 213 F.2d 65, 67; Williamson v. United States, 5 Cir. 1964, 332 F.2d 123, n. 11; Curtis v. United States, 5 Cir. 1961, 297 F.2d 639; McMillian v. United States, supra; and Barnes v. United States, 5 Cir. 1965, 341 F.2d 189. The inferences to be drawn from the evidence in this case are not inconsistent with every reasonable hypothesis of innocence; and considering them in the light most favorable to the government, which we must do, they are as consistent with innocence as with guilt. Under such circumstances, the government has failed to prove the appellants guilty beyond a reasonable doubt and to a moral certainty, as required by law to sustain their convictions. We conclude that there was insufficient evidence to prove the conspiracy charged in the indictment. Having failed to prove the conspiracy, the government cannot prevail on the other counts of the indictment, which charged appellants with unlawfully smuggling, receiving, concealing, and transporting the marihuana found in Newell’s truck at the time he was arrested. In the absence of such a conspiracy, the acts and conduct of Newell were inadmissible against appellants, as appellants were not connected with them in any way and could not be held responsible for them. There was certainly no evidence that appellants themselves smuggled, received, concealed, or transported the marihuana. The appellants have complained that the officers engaged in illegal searches and seizures at the Vale Ranch, and that the fruits of these activities were inadmissible against them at the trial. We deem it unnecessary to decide these questions in" }, { "docid": "14774981", "title": "", "text": "BELL, Circuit Judge: The sole assignment of error in this marijuana possession with intent to distribute case, 21 U.S.C.A. § 841(a)(1), is that the evidence was insufficient to warrant the convictions. Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the ac cused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that “the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude”, citing Wright, 2 Federal Practice and Procedure, j[ 467, pp. 258-59 (1969). Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355. We do not so conclude in this case. Customs officers on patrol in an automobile approached a ship at a dock on the Miami River at approximately 1:00 A.M. By driving without lights until the moment they reached the dock, they were able to surprise four men standing together three or four feet in front of a Chevrolet automobile parked 10 to 15 feet from the ship. The Chevrolet was headed toward the ship. One of the men was holding a burlap bag which he" }, { "docid": "13027761", "title": "", "text": "inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893, 899; McTyre v. United States, 5 Cir., 213 F.2d 65, 67. In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U.S.App.D.C., 389, 160 F.2d 229, 232, 233; Cf. Yoffe v. United States, 1 Cir., 153 F.2d 570, 572; Remmer v. United States, 9 Cir., 205 F.2d 277, 287. ‘The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a conviction. Great care, however, must be exercised in drawing inferences from circumstances proved in criminal cases, and mere suspicions will hot warrant a conviction.’ 20 Am.Jur., Evidence, Sec. 1217, p. 1070. As said by Judge Prettyman in Curley v. United States, supra, ‘The task of the judge in such case is not easy, for the rule of reason is frequently difficult to apply, but we know of no way to avoid that difficulty.’ Was then the jury warranted in deducing from the evidence inferences which excluded every reasonable hypothesis but that of guilt?” In Panci v. United States, 5 Cir., 256 F.2d 308, at page 312, stating that upon the evidence in the case the result would be to convict on suspicion, the court, citing Kassin v. United States, 5 Cir., 87 F.2d 183, said: “In that case and other circumstantial evidence cases, this court has without wavering declared that the test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt, and equally" }, { "docid": "1964352", "title": "", "text": "testified that the truck was approximately 10 feet from 127 barrels of mash. Ninety-six full one-gallon jugs were near the barrels. Walden’s truck contained, in plain view, 300 full one-gallon jugs of distilled spirits. The fire to a 450-gallon box-type still had been extinguished, but the still was hot. In his brief, Walden admitted having transported the whiskey. Taken in the light most favorable to the government, the inferences to be drawn from the evidence warrant Walden’s conviction on all counts. II. In Vick v. United States, 5 Cir. 1954, 216 F.2d 228, this Court held that mere presence at a still and attempted flight from a raid is not sufficient to sustain a charge of possession of an illegal distillery or possession of untaxed distilled spirits, in Vick and in other decisions this Court concluded that in criminal cases based upon circumstantial evidence, a special rule requires that inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused, but inconsistent with every reasonable hypothesis of his innocence, 216 F.2d at 232. The Supreme Court, however, has held that it is “confusing and incorrect” to instruct the jury that a special rule applies to eases based on circumstantial evidence in that an acquittal must be ordered unless the circumstantial evidence excluded every hypothesis except that of guilt. Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150. To reconcile the decisions of the Fifth Circuit with Holland, we construe them as holding that “the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude”. Wright, 2 Federal Practice and Procedure § 467, p. 258-59 (1969). In this case, decided without a jury, we are justified in assuming that the trial judge gave the circumstantial evidence no less and no more weight than the law requires. Whether the evidence is direct or circumstantial, the possession charge requires proof of control of the still or proof of activities related to custody of the still. United States v. Romano," }, { "docid": "23506329", "title": "", "text": "the court denied the motion to strike the evidence, and the motion for acquittal. A motion for acquittal at the close of the case was also denied. This was a circumstantial evidence case from the standpoint of proof of the conspiracy, and as such must be reviewed in the light of the rule that the circumstantial evidence must be not only consistent with the guilt of the accused, but also inconsistent with every reasonable hypotheses of his innocence. Curtis v. United States, 5 Cir., 1961, 297 F.2d 639, and Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. This rule must be applied to a motion for judgment of acquittal and our review of it. But it is not whether in our opinion the evidence fails to exclude every hypotheses other than guilt but rather whether there was evidence from which the jury might reasonably so conclude. We said in Vick v. United States, 5 Cir., 1954, 216 F.2d 228, 232: “In such eases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” We hold that the jury might reasonably so conclude. The agreement between appellant, Goodman and Bolton, the withdrawal of the various funds at a time when the corporation was in shaky financial condition, the lack of any explanation whatever for the withdrawals and the fact that the withdrawals, for aught that appears, went to appellant or to a corporation in which he had an interest, constituted a sufficient fact basis from which an inference of guilty beyond a reasonable doubt could be drawn, while at the same time the jury might reasonably had concluded that the evidence excluded every other reasonable hypothesis save that of guilt. We find no error in the rulings of the trial court concerning identification of the signature of appellant on the specified exhibits." }, { "docid": "8575041", "title": "", "text": "susceptible of several interpretations. As long as it is susceptible to one valid interpretation that would sustain a verdict of guilty then I have no alternative except to send it to the jury.” (Emphasis added.) Prior to the Holland case, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), this Court had announced the rule that in circumstantial evidence cases to sustain a conviction the inferences to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. See Vick v. United States, 216 F.2d 228 (5th Cir. 1954) and other pre-Holland cases. Following the Holland case, which dealt with the charge to the jury in such a case, this Court has undertaken to formulate a standard to be applied by trial courts in making their determination whether a case should be submitted to the jury. The objective of such determination, of course, is to enable the trial court to terminate as early as possible the case in which the trial court concludes as a matter of law that a jury could not reasonably find guilt beyond a reasonable doubt. The formulation used by this Court was announced and explained in United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975): “Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was, insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99" }, { "docid": "5400865", "title": "", "text": "“In circumstantial evidence cases, such as this, ‘ * * * the test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypoth- ■ esis, but that of guilt, but rather whether the jury might reasonably so conclude.’ Vick v. United States, 5th Cir. 1954, 216 F.2d 228.” This circuit, long after Holland, has applied this test in weighing the legal sufficiency of circumstantial evidence. See e. g., Byrth v. United States, 327 F.2d 917 (8 Cir. 1964), where a panel of judges composed of Judge Van Oosterhout (now Chief Judge), Judge Matthes and Judge Mehaffy said: “Ordinarily, to obtain a criminal conviction, the Government bears the burden of proving only that the defendant is guilty beyond a reasonable doubt. However, this Court has recognized the well entrenched principle that in a criminal prosecution where the evidence is wholly circumstantial, the proof must exclude every reasonable hypothesis except the accused’s guilt, for a conviction to stand.” Id. at 919. See also Wood v. United States, 361 F.2d 802, 805 (8 Cir. 1966), where this court compares the instruction with “the standard we have applied in testing the sufficiency of the evidence.” Notwithstanding the Holland rule, the principles relied on here are certainly still applicable to criminal cases. Where the government’s evidence is equally as strong to infer innocence of the crime charged, as it is to infer guilt, we are not dealing in the realm of credibility, but legal sufficiency and a court has the duty to direct an acquittal. As Judge Van Oosterhout recently stated in Lerma v. United States, 387 F.2d 187, 188 (8 Cir. 1968): “The court properly instructed the jury on the circumstantial evidence, including therein the following: ‘If, however, circumstances to be considered in determining defendant’s guilt are just as consistent with innocence as guilt, then the verdict must be one of not guilty.’ See Byrth v. United States, 8 Cir., 327 F.2d 917, 919;" }, { "docid": "13027760", "title": "", "text": "the confusion caused by this unresolved conflict in a strongly worded affirmation that he was free from doubt, an affirmation by which certitude was made to seem certainty, an impermissible course, we think, in the trial of a criminal case and the resolution of doubts raised therein. In our opinion, instead of trying the case as a trier of facts, and, as such rationalizing himself into discarding the doubts he felt as a judge of the law, and finding defendants guilty as matter of fact, he should as matter of law have taken counsel of his doubts and acquitted them. Because this court has so often and so incisively and concisely stated its role in appeals from judgments in criminal cases where the evidence is circumstantial, we will not here undertake to restate that role, but will content ourselves with citing the cases and quoting briefly from some of them. In Vick v. United States, 216 F.2d 228, this court said: “In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893, 899; McTyre v. United States, 5 Cir., 213 F.2d 65, 67. In such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U.S.App.D.C., 389, 160 F.2d 229, 232, 233; Cf. Yoffe v. United States, 1 Cir., 153 F.2d 570, 572; Remmer v. United States, 9 Cir., 205 F.2d 277, 287. ‘The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a" }, { "docid": "8575042", "title": "", "text": "in which the trial court concludes as a matter of law that a jury could not reasonably find guilt beyond a reasonable doubt. The formulation used by this Court was announced and explained in United States v. Nazien, 504 F.2d 394 (5th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1358, 43 L.Ed.2d 443 (1975): “Appellants rely on the case of Vick v. United States, 5 Cir., 1954, 216 F.2d 228. There we held that the presence near an illegal distillery of one who could have been a hunter (in possession of a shotgun), coupled with flight, without more, was, insufficient to warrant conviction. We stated that to sustain conviction in a circumstantial evidence case, the inferences reasonably to be drawn from the evidence must not only be consistent with the guilt of the accused but inconsistent with every reasonable hypothesis of innocence. In Surrett v. United States, 5 Cir., 1970, 421 F.2d 403, we reconciled Vick and its progeny with Holland v. United States, 1954, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150, and held that ‘the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude’ . . . . Then in United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041, we added that whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency. See also United States v. Hill, 5 Cir., 1973, 481 F.2d 929, 931; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355.” This standard has been subsequently restated in terms of “hypothesis of innocence” in United States v. Smith, 493 F.2d 24, 26, where this Court said: “Additionally, the test is not whether the trial judge or the appellate judge concludes that the evidence fails to exclude every reasonable hypothesis but that of guilt, but whether the jury might reasonably so conclude.” We construe this language as meaning the sainé thing" }, { "docid": "22069629", "title": "", "text": "Starr v. United States, 164 U.S. 627, 632,17 S.Ct. 223, 41 L.Ed. 577; Rowan v. United States, 7 Cir., 277 F. 777, 778. As said in Alberty v. United States, 162 U.S. 499, 510, 16 S.Ct. 864, 868, 40 L.Ed 1051, “While, undoubtedly, the flight of the' accused is a circumstance proper to be laid before the jury, as' having a tendency to prove his guilt, at the same time, as was observed in Ryan v. People, 79 N.Y. 593, ‘there are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves, depending upon the surrounding circumstances.’ ” In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. Kassin v. United States, 5 Cir., 87 F.2d 183, 184; Rent v. United States, 5 Cir., 209 F.2d 893, 899; McTyre v. United States, 5 Cir., 213 F.2d 65, 67. in such cases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. Curley v. United States, 81 U.S.App.D.C. 389, 160 F.2d 229, 232, 233; cf. Yoffe v. United States, 1 Cir., 153 F.2d 570, 572; Remmer v. United States, 9 Cir., 205 F.2d 277, 287. “The weight of circumstantial evidence is a question for the jury to determine; such evidence alone or in connection with other evidence may justify a conviction. Great care, however, must be exercised in drawing inferences from circumstances proved in criminal cases, and mere suspicions will not warrant a conviction.” 20 Am. Jur., Evidence," }, { "docid": "4119396", "title": "", "text": "the time of trial during March, 1972, Mr. Milton was in his seventies. Mrs. Ruth Crutcher was Mr. Milton’s personal secretary and assistant from 1955 until he retired in 1971. During the later years she observed a change in his mental state and testified that, “There are sometimes when he is, I would consider him, not coherent, you know some days more than others.” She added, “Well, there are times that he might even ask me what day it is, the day, or if I would give him a transaction to approve, by his questions I knew he didn’t know exactly what I was talking about, or he wasn’t following me as he had done maybe on previous occasions in his thinking, I guess the way I’ve always knew him to think. He would have understood what I was saying, you know, without asking any questions.” . In Vick v. United States, supra, the court stated: In circumstantial evidence cases, this Court has said repeatedly that to sustain conviction the inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence. (citations omitted) In such oases the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude. 216 F.2d at 232." }, { "docid": "5400864", "title": "", "text": "contrary in a case decided since the present case was argued and submitted. Cuthbert and Busby v. United States, 5 Cir., 1960, 278 F.2d 220. It was there pointed out that nothing said in the Holland case, or in the authorities cited in that case, is at all inconsistent with the test to be applied in circumstantial evidence cases on motion for judgment of acquittal and on review of the denial of such motion as to whether the inferences reasonably to be drawn from the evidence were not only consistent with guilt of the accused but inconsistent with every reasonable hypothesis of his innocence.” See also Barnes v. United States, 341 F.2d 189 (5 Cir. 1965); McMillian v. United States, 399 F.2d 478 (5 Cir. 1968); Whaley v. United States, 362 F.2d 938 (9 Cir. 1966); Woxberg v. United States, 329 F.2d 284 (9 Cir. 1964), cert. den. 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33. As the Fifth Circuit recently announced in Harper v. United States, 405 F.2d 185, 186 (5 Cir. 1969): “In circumstantial evidence cases, such as this, ‘ * * * the test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypoth- ■ esis, but that of guilt, but rather whether the jury might reasonably so conclude.’ Vick v. United States, 5th Cir. 1954, 216 F.2d 228.” This circuit, long after Holland, has applied this test in weighing the legal sufficiency of circumstantial evidence. See e. g., Byrth v. United States, 327 F.2d 917 (8 Cir. 1964), where a panel of judges composed of Judge Van Oosterhout (now Chief Judge), Judge Matthes and Judge Mehaffy said: “Ordinarily, to obtain a criminal conviction, the Government bears the burden of proving only that the defendant is guilty beyond a reasonable doubt. However, this Court has recognized the well entrenched principle that in a criminal prosecution where the evidence is wholly circumstantial, the proof must exclude every" } ]

[ { "docid": "10287100", "title": "", "text": "in our opinion, too technical for him to fully understand, especially being him at the time of the hearing under treatment for a mental condition and not represented or assisted by counsel. In Leon v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 337 F.Supp. 905, we dealt with a situation similar to the present one. Likewise, in Román v. Secretary of Health, Education and Welfare, supra. In this respect, it suffices to say that when a claimant appears without counsel at the administrative hearing and the presence of a mental impairment is obvious, be it because it is observable by the hearing examiner or because medical evidence is presented in that respect, it is the duty of the hearing examiner to adequately explore all aspects of the claim before him. Otherwise, legitimate claims, such as mental impairments, could unjustly go unattended for failure to properly act upon them. We are of the opinion that in this case the hearing examiner failed to adequately explore all aspects of the claim. It appears to us that although the physical impairments alleged by the plaintiff are his main complaint, the record shows that his mental condition may be a significant factor in determining the severity of his disability. Román v. Secretary of Health, Education and Welfare, supra. The evidence in record before us, in relation to the mental condition of plaintiff, is insufficient for us to conclude that the record contains substantial evidence to support the findings of the Secretary (see Note 1). Likewise, it is our opinion that in view of the factors we previously mentioned, this plaintiff may have been prevented from adequately presenting his claim before the Secretary. Moreover, plaintiff has satisfied us that with representation of counsel at the rehearing, new medical evidence and a better case will be presented. Toledo v. Secretary of Health, Education and Welfare (1 Cir. 1971), 435 F.2d 1297. Furthermore, by failing to adequately inquire about plaintiff’s mental condition, defendant has acted unfairly. Toledo v. Secretary of Health, Education and Welfare, supra; Torres v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 337 F.Supp. 1329." } ]

[ { "docid": "10287095", "title": "", "text": "statutory scheme of judicial review being limited in nature, this Court is bound to ascertain only whether the record contains substantial evidence to support the Secretary’s findings. Santiago v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 336 F.Supp. 1071; Rosario v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 324 F.Supp. 1321. The plaintiff asserts he has been unable to work since 1962, with the exception of 2 or 3 days in 1965 (when he worked only four hours); that the record before the Court is less than impartial, occasioned principally by the absence of a counsel to represent him before the Secretary; and that the said absence of counsel representation has prevented him from meeting his evidentiary burden and properly presenting his case before the Secretary. Plaintiff also asserts that the hearing examiner committed abuse of discretion and, hence, reversible error, for he failed to act as an impartial arbitrator, seeing that all relevant facts were fully developed during the course of the hearing. Lastly, plaintiff contends that the hearing examiner’s decision was not based on substantial evidence, for exclusion was made of some documentary evidence plaintiff intended to introduce at the hearing; for the hearing examiner made misleading unqualified findings of facts regarding his education and ability to read, count, give change and solve simple arithmetic problems without any foundation on the record; for the hearing examiner has concluded he had no significant mental impairment on or before March 31, 1965, based on a document which merely specifies the date he began to receive treatment (see note 1); and for the hearing examiner found he was able to do his prior job on or before March 31, 1965, when the record show the contrary. Plaintiff submits that the hearing examiner’s failure to explore the facts adequately, as well as his making findings of fact which are clearly unsubstantiated by any evidence taking the record as a whole, constitutes reversible error, thereby entitling him to judgment in his favor. In the alternative, plaintiff requests the Court to remand the cause to the Secretary for a rehearing, where he would present" }, { "docid": "22388347", "title": "", "text": "completely. For item 6-d [date claimant will be able to perform usual work] give approximate date. Make some estimate. Delay in payment of Disability Benefits may be prevented. Thus, the doctor’s statement was not made spontaneously; in order to obtain benefits speedily for his patient, he was required to hazard a guess on the date of return to work. In addition, this cryptic notation was made fourteen months before the determinative date for Social Security benefits, giving it less than substantial probative force. The other factor which obviously influenced the examiner, though he did not mention it explicitly in his opinion, was his feeling that the receipt of reparations motivated Mrs. Gold to quit work. However, she had been unable to work for reasons of health for more than a year before the payments arrived, and shortly after receipt of the money she enrolled at a business school and began a new type of job, less arduous than her previous work. This behavior is not consistent with malingering. Thus, we find the answer on the disability form, in light of the surrounding circumstances, and the examiner’s negative assessment of credibility, which seems somewhat inconsistent with established facts, insufficient to constitute substantial evidence supporting the decision. We have reviewed the evidence in detail because we are mindful that in a case in which the claimant is handicapped by lack' of counsel, ill health, and inability to speak English well, the courts have a duty to make a “searching investigation” of the record. Miracle v. Celebrezze, 351 F.2d 361, 382-383 (6th Cir.1965). See Scott v. Celebrezze, 241 F.Supp. 733, 736 n. 21 (S.D.N.Y.1965). We feel particularly compelled to do so here, as the attitude of the examiner as revealed in the transcript hardly measured up to his statutory duty. Hearings under the Social Security Act are non-adversary, Blanscet v. Ribicoff, 201 F.Supp. 257 (W.D.Ark. 1962); “rights and privileges are in issue and [when] the guiding hand of counsel is not present to advocate their existence, a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and explore" }, { "docid": "4213933", "title": "", "text": "administrative context has been emphasized by the United States Supreme Court: “. . . counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination and generally safeguard the interests of the recipient.” Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Several courts have reversed or remanded cases involving absence of counsel where other factors were present in the record. See Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir. 1972) — inability to speak English well and general confusion; Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970) — existence of new evidence; Alamo v. Richardson, 355 F.Supp. 314 (D.P.R.1972) — existence of mental impairment; and Roman v. Secretary, 355 F. Supp. 646 (D.P.R.1972) — existence of mental impairment. In the case at bar the claimant was represented at the hearing and apparently prior thereto by a law student or law graduate. The attorney of record for the claimant who was accepting the case on a fee basis did not bother to appear. There is ease law holding that whenever a claimant is represented by ineffective counsel a basis for remand exists. Arms v. Gardner, 353 F.2d 197 (6th Cir. 1965). The counsel of record who was handling the case on a fee basis failed to attend the hearing and sent a substitute. The claimant’s representative at the hearing did a credible job of examination but he clearly misunderstood the relevant issues. The case involved widow’s disability benefits and not ordinary disability assistance. The definition of disability is more limited and the type of evidence most helpful is different. Since age, vocational history and educational attainments are not considered in widow’s disability cases much of the testimony brought out by the representative was totally irrelevant. It is clear that he misunderstood the nature of the proceedings and was of little, if any, assistance to the claimant. The representative’s ineffectiveness is also revealed by his statement in a letter dated November 30, 1973 that he was completely unfamiliar with the appeal system of the Bureau of Hearings" }, { "docid": "23238663", "title": "", "text": "“by making a prima facie showing of physical impairment sufficiently severe to preclude [the claimant’s] return to his prior employment,” Decker v. Harris, supra, 647 F.2d at 293-94; Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). A finding by the Secretary that a claimant has not shown disability is conclusive if supported by substantial evidence, 42 U.S.C. §§ 405(g), 1383(c)(3); i.e., by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Parker v. Harris, supra, 626 F.2d at 231-32. In addition we must be satisfied that the claimant has had “a full hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the Act.” Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir.1972). Indeed where, as here, “the claimant is handicapped by lack of counsel, ill health, and inability to speak English ... the courts have a duty to make a ‘searching investigation’ of the record.” Gold, supra, 463 F.2d at 43 (quoting Miracle v. Celebrezze, 351 F.2d 361, 382-83 (6th Cir.1965)). In such a case “the ALJ has a ‘duty ... to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts....’” Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir.1980) (quoting Gold v. Secretary of HEW, supra, 463 F.2d at 43). As we recently noted in Schauer v. Schweiker, 675 F.2d 55 (2d Cir.1982), the concept of burden of proof is “particularly elusive in cases involving social security benefits,” in part because the proceedings “are not designed to be adversarial” and certainly are not likely to be such when the claimant, as here, is unrepresented. Id. at 57. In making his inquiry, the ALJ must make credibility findings when there is conflicting evidence with respect to a material issue such as pain or other disability. If the claimant is found credible, his/her subjec tive pain may not be disregarded." }, { "docid": "10791019", "title": "", "text": "such that handicapped people would be considered, is that right? A Handicapped people have been placed in those jobs, yes, sir. As I say, we’re talking about sedentary jobs, so his leg condition is not in issue. Q I assume, if I understood you correctly, that you’re talking about jobs in industries where they’re interested in hiring people who can do the work, whether they have impairments or not. A That’s correct, yes, sir. The leading of this witness, by the examiner, at the time he was being cross-examined by a non-lawyer, non-English-speaking person is not the best administrative practice. It has been clearly stated by this Court that the lack of the aid of an attorney at the administrative hearing does not deny procedural due process, Vega v. Secretary of Health, Education and Welfare, 321 F.Supp. 553 (1970). In the same case this Court stated: Having been afforded the opportunity for counsel representation, the plaintiff was not denied due process during the administrative hearing at which he appeared without such representation. Moreover, it has been held that absence of counsel during the prior administrative proceedings does not constitute “good cause” pursuant to section [205(g)] for remand of the case for further administrative proceedings. The Court of Appeals for this Circuit held in Toledo v. Secretary of Health, Education and Welfare, 435 F.2d 1297 (1971), that reversal for lack of attorney is not required where “there is no suggestion that having counsel would have resulted in the presentation of any better case” where “it is quite apparent from the record that plaintiff was fairly treated” and where “the examiner was exceptionally solicitous and helpful” (P. 1297), so that there is no prejudice shown. Cross v. Finch, 5 Cir., 427 F.2d 406, 408-409, which is cited extensively in Vega, supra, and by the Court of Appeals in Toledo, supra, expresses that it is possible, upon a showing of clear prejudice or unfairness caused by a claimant’s lack of counsel, to acquire a reconsideration by the Secretary upon a remand. In Webb v. Finch, 6 Cir., 431 F.2d 1179 (1970), the Court" }, { "docid": "10287098", "title": "", "text": "demonstrated by evidence supported by objective data obtained by medically acceptable clinical and laboratory techniques. With respect to the medical evidence subsequent to the date plaintiff last met the insured status requirements, defendant contends that said evidence does not entitle plaintiff to disability benefits, for at most, it can reflect that plaintiff’s impairment reached disabling severity after the expiration of his insured status, and that for said reason, is not relevant, even though the impairment itself may have existed before plaintiff’s insured status. In relation to plaintiff’s lack of legal representation at the hearing before the hearing examiner, it alleges that it is no ground for remand ; that plaintiff was notified of his right to be represented by counsel, thus afforded due process by the defendant, but apparently, chose to proceed with the hearing without counsel; and that plaintiff has failed to show that he was prejudiced or that the proceedings were unfair. Finally, defendant asserts there was no abuse of discretion in the hearing examiner’s development of the evidence. Although we are aware that the burden is upon the plaintiff to prove he is entitled to the benefits of the Act, Reyes Robles v. Finch (1 Cir. 1969), 409 F.2d 84; De Jesús Faría v. Finch (D.C.P.R.1971), 336 F.Supp. 1069; Torres v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 333 F.Supp. 676, and not upon the Secretary to make an initial showing of nondisability to perform a job, De Jesús Faría v. Finch, supra; de la Cruz v. Secretary of Health, Education and Welfare (D.C.P.R.1971), 331 F.Supp. 522, we are of the opinion that said rules, even though being very convenient for the expediency of process on the administrative level, should be applied with caution in cases like the one before us. Román v. Secretary of Health, Education and Welfare (D.C.P.R.1972), 355 F.Supp. 646 (Memorandum Opinion and Order of November 15, 1972). We have before us a plaintiff with only first grade education, who can hardly understand the administrative process before tfie defendant, who was the subject of a hearing which, although held in the Spanish language, was" }, { "docid": "23227899", "title": "", "text": "of counsel, although the duty is heightened when the claimant is unrepresented. The duty is one of inquiry, ensuring that the ALJ is informed about facts relevant to his decision and learns the claimant’s own version of those facts. Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir.1993) (citations, quotations, and brackets omitted). Further, under 20 C.F.R. § 404.1512(e), “[w]hen the evidence [the agency] receive[s] from [a claimant’s] treating physician or psychologist or other medical source is inadequate for [the agency] to determine whether [the claimant is] disabled, [the agency] will need additional information to reach a determination or a decision.” Here, there was no need to further develop the record because sufficient information existed for the ALJ to make her disability determination. There was record evidence regarding Mr. Cowan’s daily activities and physical abilities; there was Exhibit 9F, the PRT form in which the medical consultant had found that Mr. Co-wan’s mental impairment had resulted in only a mild restriction of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, persistence, or pace, and no repeated episodes of decompensation; and there was no evidence, medical or otherwise, suggesting that his mental impairment had any greater effect on Mr. Cowan’s ability to work. Further, Mr. Cowan was represented by counsel at the hearing before the ALJ, and we held in Hawkins v. Chater that: when the claimant is represented by counsel at the administrative hearing, the ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure and present claimant’s case in a way that the claimant’s claims are adequately explored. Thus, in a counseled case, the ALJ may ordinarily require counsel to identify the issue or issues requiring further development. See Glass v. Shalala, 43 F.3d 1392, 1394-96 (10th Cir.1994) (refusing to remand for further development of the record where the ALJ had carefully explored the applicant’s claims and where counsel representing claimant failed to specify the additional information sought). 113 F.3d 1162, 1167-68 (10th Cir.1997); see also Maes v. Astrue, 522 F.3d 1093, 1096" }, { "docid": "8523548", "title": "", "text": "been treated for conversion reaction with anxiety”. No further inquiry, at the administrative level, on plaintiff’s mental condition is found in the transcript of proceedings before this Court. Defendant submits that plaintiff failed to establish that she had physical or mental impairments, or a combination of impairments that would prevent her from engaging in substantial gainful activity, thus failing to prove that she is entitled to benefits. We cannot agree with said assertion. Defendant also submits that the burden of proof is not on the Secretary to make an initial showing of nondisability to perform a job: Justice v. Gardner (6 Cir. 1966), 360 F.2d 998; de la Cruz v. Secretary of Health, Education & Welfare (D.C.P.R.1971), 331 F.Supp. 522, 524; de Jesus Faria v. Finch (D.C.P.R.1971), 336 F.Supp. 1069; but that the burden is upon plaintiff to prove she is entitled to the benefits of the Act. Whitt v. Gardner (6 Cir. 1968), 389 F.2d 906; Torres v. Secretary of Health, Education & Welfare (D.C.P.R.1971), 333 F.Supp. 676. We are of the opinion that the above stated rule, even though being very convenient for the expediency of process on the administrative level, should be applied with caution in cases like the one before us. Wé have before us an indigent plaintiff \"(the record reflects her sole income is $12.50 a month which she receives from Welfare), who lacks adequate schooling (plaintiff has third grade grammar school), who seems to suffer from a mental condition (diagnosed on September 30, 1968 as conversion reaction with anxiety) and who was not represented or assisted by counsel at the Administrative proceedings. In Leon v. Secretary of Health, Education & Welfare (D.C.P.R.1971), 337 F.Supp. 905, we dealt with a situation similar to the present one. In said cause, plaintiff’s mental condition was repeatedly mentioned at the administrative level but no examination of plaintiff was made in order to determine her mental condition. We, therein, remanded the ease in order that the Administration could receive additional evidence concerning plaintiff’s mental condition. With regard to the rule herein asserted by the defendant, we, in Leon v." }, { "docid": "22110469", "title": "", "text": "225, 231-32 (2d Cir. 1980). In addition, a reviewing court must be satisfied that the claimant has had “a full hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the Act.” Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972). One of the factors which the court must consider is whether the claimant was represented by counsel at the administrative hearing. Id. Although a claimant for SSI disability benefits is entitled to be represented by counsel if he so desires, the Secretary is under no obligation to furnish such counsel. If, however, the claimant does appear pro se, the ALJ has a “duty ... to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts....” Id. See also Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975). In such cases where the claimant was “handicapped by lack of counsel” at the administrative hearing, the reviewing court has “a duty to make a ‘searching investigation’ of the record” to ensure that the claimant’s rights have been adequately protected. Gold, supra, 463 F.2d at 43. Applying these principles to the record before us, we conclude that the ALJ did not adequately protect the rights of this pro se litigant by ensuring that all of the relevant facts were sufficiently developed and considered. The record is replete with instances where the ALJ should have questioned plaintiff more fully concerning various aspects of his testimony. Despite passing references by plaintiff to “heart pains” and “shortness of breath,” the ALJ never questioned plaintiff about his subjective symptoms. This circuit has repeatedly held that a claimant’s testimony concerning his pain and suffering is not only probative on the issue of disability, but “may serve as the basis for establishing disability, even when such pain is unaccompanied by positive clinical findings or other ‘objective’ medical evidence . . . . ” Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979); see also McLaughlin v. Secretary of HEW, 612 F.2d 701, 704-05 (2d Cir. 1980). In the instant case, where the medical record before the" }, { "docid": "4213932", "title": "", "text": "Judge finds that there was no evidence of arthritic impairment because after balancing the medical evidence he concludes that greater weight must be given to the physician who performed, or had performed, tests for the symptomol-ogy. From that statement we are led to conclude that Dr. Lanman’s X-rays totally failed to detect the existence of any arthritic conditions. This is particularly misleading because the only X-ray taken by or for Dr. Lanman that related to her arthritic condition was of the claimant’s left knee. It is interesting that only one such X-ray was taken, and that one of the knee, when the other medical data supported a finding of arthritis in both of the claimant’s shoulders, hands, and lumbar spine. Another matter of particular concern is the effectiveness of the claimant’s previous representative. It is not argued that the mere failure of a disability claimant to be represented by an attorney at a Social Security hearing is sufficient to warrant reversal or remand of an adverse administrative decision. However, the importance of counsel in an administrative context has been emphasized by the United States Supreme Court: “. . . counsel can help delineate the issues, present the factual contentions in an orderly manner, conduct cross-examination and generally safeguard the interests of the recipient.” Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Several courts have reversed or remanded cases involving absence of counsel where other factors were present in the record. See Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38 (2d Cir. 1972) — inability to speak English well and general confusion; Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970) — existence of new evidence; Alamo v. Richardson, 355 F.Supp. 314 (D.P.R.1972) — existence of mental impairment; and Roman v. Secretary, 355 F. Supp. 646 (D.P.R.1972) — existence of mental impairment. In the case at bar the claimant was represented at the hearing and apparently prior thereto by a law student or law graduate. The attorney of record for the claimant who was accepting the case on a fee basis did not bother" }, { "docid": "7165349", "title": "", "text": "standard for. several intertwining reasons. First, the judge failed adequately to develop the record. In particular, he ignored a 19-month evidentiary gap during appellant’s benefits eligibility period — a period after Poulin left his last job, allegedly because of health;. while he was under treatment for schizophrenia; and shortly after which he attempted suicide and was re-hospitalized. Second, the administrative law judge failed to give adequate weight to the testimony of appellant’s treating physicians, in part because of a misunderstanding of the nature of the psychiatric evidence, and in part because of a possible misreading of one doctor’s report. Finally, the judge’s opinion rests upon a fundamental misconception of mental illness that the Secretary now rejects. A. Development of the Record We have at least twice before had occasion to remind the agency that under its own regulation, if not due process itself, an administrative law judge has the affirmative duty to investigate fully all matters at issue and to develop the comprehensive record requisite for a fair determination of disability. This duty becomes especially strict when, as here, the claimant is unrepresented by an attorney. It is also increased when, as again here, the claimant has limited fluency in English. Finally, the duty heightens when, as here, the claimant is the victim of a mental illness that may decrease his ability to repre sent himself. Thus, in the case of an unrepresented non-English-speaking claimant disabled by schizophrenia, the administrative law judge’s duty of record-development most certainly rises to its zenith, and absent such record-development the Secretary’s decision cannot stand. We find that the administrative law judge failed in his “duty to probe and explore scrupulously all the relevant facts” in several significant respects. The most glaring among the evidentiary problems is the absence of information concerning the last 19 months of Poulin’s eligibility for benefits. Appellant left a job at LaChance Brothers on November 28, 1969. His eligibility for benefits did not expire until June 30, 1971. There was testimony at the hearing that Poulin left his job because of illness, and Dr. Rouleau, his treating psychiatrist during this" }, { "docid": "22388348", "title": "", "text": "disability form, in light of the surrounding circumstances, and the examiner’s negative assessment of credibility, which seems somewhat inconsistent with established facts, insufficient to constitute substantial evidence supporting the decision. We have reviewed the evidence in detail because we are mindful that in a case in which the claimant is handicapped by lack' of counsel, ill health, and inability to speak English well, the courts have a duty to make a “searching investigation” of the record. Miracle v. Celebrezze, 351 F.2d 361, 382-383 (6th Cir.1965). See Scott v. Celebrezze, 241 F.Supp. 733, 736 n. 21 (S.D.N.Y.1965). We feel particularly compelled to do so here, as the attitude of the examiner as revealed in the transcript hardly measured up to his statutory duty. Hearings under the Social Security Act are non-adversary, Blanscet v. Ribicoff, 201 F.Supp. 257 (W.D.Ark. 1962); “rights and privileges are in issue and [when] the guiding hand of counsel is not present to advocate their existence, a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts surrounding the alleged right or privilege.” Hennig v. Gardner, supra, 276 F.Supp. at 624-625. See Arms v. Gardner, 353 F.2d 197 (6th Cir.1965); Zeno v. Secretary of HEW, 331 F.Supp. 1095 (D.P.R. 1970); Stewart v. Cohen, 309 F.Supp. 949 (E.D.N.Y.1970); Staskel v. Gardner, 274 F.Supp. 861 (E.D.Pa.1967). In this case the examiner did not grant Mrs. Gold a full hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the Act. 20 C.F.R. § 404.927; DeGracia v. Secretary, 248 F.Supp. 522 (D.P.R. 1966); Ihnen v. Celebrezze, 223 F.Supp. 157 (D.S.D.1964). Although the notice of hearing stated that the claimant could bring counsel or a representative to the hearing, the\" examiner did not suggest when she appeared alone, that she obtain legal aid. His intolerance of her confusion and inability to digest the written exhibits with which she was faced shortly before the hearing began, his failure to call witnesses or to indicate that she ought to do so because he considered her case unpersuasive, and his concern" }, { "docid": "8523550", "title": "", "text": "Secretary of Health, Education & Welfare, supra, stated, at pages 906-907, the following : “ * * * This claimant appeared without counsel at the administrative hearing held before the examiner. The mental aspect which is repeatedly mentioned has been dismissed by the examiner without relevant inquiry into the same. This Court is aware that the burden of proving a disability rests upon the Social Security claimant and that he does not have a right to counsel at the hearing. This, notwithstanding, the examiner has the duty to explore all aspects of a claim before him when the applicant is unassisted by counsel. Otherwise, legitimate claims such as mental impairments could unjustly go unattended for failure to properly act upon them. * * (Emphasis supplied by this Court). We are of the opinion that in this case, the examiner did not “explore all aspects of the claim”. It appears to us that, though the physical impairments alleged by the plaintiff are her main complaint, the record shows that her mental condition is also a significant factor in determining the severity of her disability. Martis v. Secretary of Health, Education & Welfare (D.C.P.R.1971), 329 F.Supp. 100. The evidence in the record under review, in relation to the mental condition of plaintiff, is insufficient for us to conclude that the record contains substantial evidence to support the Secretary’s findings. Rosario v. Secretary of Health, Education & Welfare, supra. Although the medical certificate of Dr. José A. Román Toledo, in relation to plaintiff’s treatment in the Mental Health Clinic in Arecibo, states that plaintiff has been under treatment at said Center since September 30, 1968, and plaintiff herein must establish that she was under a disability which commenced prior to December 31, 1967, when she last met the special insured status requirements, the record before us is insufficient to rule out her mental disability was not present before she last met her insured status. It is important to notice that her mental condition diagnosed on September 30, 1968, as conversion reaction with anxiety, was reflected on said date by nervousness, headaches, muscle contractures" }, { "docid": "4928227", "title": "", "text": "to his conclusion that she was not under a disability. Her back condition was considered by the ALJ both alone and in combination with her arthritic hand, in spite of the absence of any evidence establishing that she suffered from arthritis or evidence revealing the severity of this impairment. All hypothetical questions assumed, in varying degrees, the existence of arthritis. Yet the ALJ made no inquiry of substance in an attempt to ascertain the facts relevant to this issue. The Seventh Circuit has recognized the important role the Administrative Law Judge plays in the development of a full and fair record. E. g., Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857 (1978). “While hearings on disability claims are not adversary proceedings, . where the disability benefits claimant is unassisted by counsel, the ALJ has a duty ‘ “scrupulously and conscientiously [to] probe into, inquire of, and explore for all relevant facts . . . ” Smith v. Secretary of Health, Education and Welfare, id. at 860. This duty was not met here. It is apparent from the record that the claimant faced a language barrier which, at times prevented her from testifying effectively or challenging adverse evidence. This is demonstrated throughout the record. Even the documents in evidence were admitted under such circumstances. ALJ: You’ve gone through those records before the hearing today, and I ask you at this time, Mrs. Garcia, if you have any objections to my relying upon them in making my decision to the extent that I find it necessary? Just a moment ladies. We’ll conduct the hearing with English as far as we can go. CLAIMANT: Okay. AU: This is our mother tongue in the country and we must try as best we can to conduct these hearings. The judge does not have the privilege of being fluent in Spanish. Do you have any objection if I make these part of the record? Do you understand that? CLAIMANT: If I had what you say? AU: Do you want me to make these part of the record, these medical reports and other documents?" }, { "docid": "21887060", "title": "", "text": "Cir. 1980); Livingston v. Califano, 614 F.2d 342 (3rd Cir. 1980). Our examination of the record in light of the Administrative Law Judge’s heightened responsibility convinces us that claimant here suffered clear prejudice and unfairness because she was without counsel. It required over seven pages of transcript to establish claimant’s name, age and address for the record. She was confused about how to object to the medical evidence in her file and nearly all of her own testimony concerning her medical problems was directionless and generally incoherent. The record shows that the Administrative Law Judge was unfamiliar with claimant’s former job duties and medical ailments and his inquiries failed to establish the nature of either with any specificity. We find that the Administrative Law Judge did not meet his burden of helping a pro se claimant develop her case in order to insure a full and fair hearing. At oral argument, claimant’s counsel suggested several areas in which evidence would be developed on remand, including I.Q. testing, psychological examination, the possibility of heredity in her daughter’s mental condition, claimant’s work experience and daily lifestyle, and other medical evidence. This showing of the nature of the evidence that could have been produced at the Secretary’s hearing had counsel been present or had the Administrative Law Judge been more diligent in his inquiries convinces us that the Secretary’s decision “might reasonably have been different had [that] evidence been before [her] when [her] decision was rendered”. King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). Claimant was effectively disabled from substantiating her claim. See Cullison v. Califano, 613 F.2d 55 (4th Cir. 1980). We accordingly remand this case to the Secretary for a new hearing. We point out that we do not express an opinion on whether claimant is or is not entitled to disability benefits; we decide only that her lack of representation by counsel coupled with the Administrative Law Judge’s failure to help her adequately develop the evidence led to a denial to claimant of a full and fair hearing. Reversed and remanded. . We do not decide whether there" }, { "docid": "8523549", "title": "", "text": "the above stated rule, even though being very convenient for the expediency of process on the administrative level, should be applied with caution in cases like the one before us. Wé have before us an indigent plaintiff \"(the record reflects her sole income is $12.50 a month which she receives from Welfare), who lacks adequate schooling (plaintiff has third grade grammar school), who seems to suffer from a mental condition (diagnosed on September 30, 1968 as conversion reaction with anxiety) and who was not represented or assisted by counsel at the Administrative proceedings. In Leon v. Secretary of Health, Education & Welfare (D.C.P.R.1971), 337 F.Supp. 905, we dealt with a situation similar to the present one. In said cause, plaintiff’s mental condition was repeatedly mentioned at the administrative level but no examination of plaintiff was made in order to determine her mental condition. We, therein, remanded the ease in order that the Administration could receive additional evidence concerning plaintiff’s mental condition. With regard to the rule herein asserted by the defendant, we, in Leon v. Secretary of Health, Education & Welfare, supra, stated, at pages 906-907, the following : “ * * * This claimant appeared without counsel at the administrative hearing held before the examiner. The mental aspect which is repeatedly mentioned has been dismissed by the examiner without relevant inquiry into the same. This Court is aware that the burden of proving a disability rests upon the Social Security claimant and that he does not have a right to counsel at the hearing. This, notwithstanding, the examiner has the duty to explore all aspects of a claim before him when the applicant is unassisted by counsel. Otherwise, legitimate claims such as mental impairments could unjustly go unattended for failure to properly act upon them. * * (Emphasis supplied by this Court). We are of the opinion that in this case, the examiner did not “explore all aspects of the claim”. It appears to us that, though the physical impairments alleged by the plaintiff are her main complaint, the record shows that her mental condition is also a significant" }, { "docid": "7802743", "title": "", "text": "not to reopen Social Security income benefits applications to pay claimant the benefits to which he was entitled where the claimant had been incompetent at the time of the ex parte denials of his applications); Hines, supra (where claimant suffered from mental incapacity which rendered notice provided by the Secretary inadequate as a matter of due process). Again, the presiding AU found that there is evidence that Mr. Sawma is mentally disabled, and hence, his failure to comply with the requirement that he fill out a medical form was not willful. The lower court acknowledges this fact, yet failed to recognize the possibility that plaintiff’s procedural due process rights may have been violated by plaintiff’s own inability to represent himself competently because of a mental disability. Without further inquiry, mental examination and assistance of counsel, it is not possible to know whether plaintiff’s procedural due process rights have been violated. This type of contention seems peculiarly apropos in the context of Social Security disability benefit proceedings in which, as here, the very disability that forms all or part of the basis for which the claimant seeks benefits may deprive [him] of the ability to understand or act upon notice of available administrative procedures. [emphasis added] Parker, supra at 1203. The instant applicant for disability payments did not receive a fair and adequate hearing before the NYDSS because of a significant gap in the record as to his true mental condition. Echevarria, supra. “The AU has a special duty to protect the rights of a pro se claimant” and to develop a full record. Lopez v. Sec. of HHS, 728 F.2d 148, 149 (2nd Cir.1984); See Echevarria, supra at 755; Hankerson v. Harris, 636 F.2d 893, 895 (2nd Cir.1980). In a case such as Mr. Sawma’s, where the claimant was unrepresented by counsel in proceedings before the AU, the hearing examiner has a heightened duty to scrupulously and conscientiously probe into and explore all the relevant facts surrounding the alleged right or privilege. Gold v. Secretary of HEW, 463 F.2d 38 (2nd Cir.1972); Mimms v. Heckler, 750 F.2d 180 (2nd Cir.1984)." }, { "docid": "23090892", "title": "", "text": "a remand. We turn now to the specific reasons for our decision. I The plaintiff-appellant is a 61 year old former laundry worker who has not been gainfully employed since September 9,1968. On that date she was hospitalized after passing out from a severe asthma attack. At the time of her administrative hearing on July 5, 1973 she was receiving $80.00 per month welfare disability benefits, some food stamps and township poor relief. It is undisputed that this plaintiff-appellant is of very limited education and has spent her entire worklife doing menial physical labor. In her youth she worked as a tobacco stripper in Kentucky. She later cooked in a boarding house in Kentucky and in a restaurant in Indianapolis. For about 20 years she did manual labor in two laundries. At her hearing the Administrative Law Judge (ALJ) made a minimal explanation of her right to counsel. It is also apparent from the record that she did not understand the role that a lawyer would play in that proceeding. We are mindful that there is no constitutional right to counsel and the Secretary has no duty to urge counsel upon a claimant. Where, as here, the record discloses possible mental illness coupled with a misconception as to the role of a lawyer, the ALJ should have, at the very least, explained these interrelated subjects in greater detail and with greater care. This failure provides the backdrop for further deficiencies in the record. The mere failure of a disability claimant to be represented by a lawyer at a hearing is not in itself sufficient to warrant reversal on remand. See Truss v. Richardson, 338 F.Supp. 741 (D.C.Mich.1971). However, the importance of counsel in administrative procedures has been emphasized. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Courts have also reversed and remanded cases involving absence of counsel where other factors were present. See Gold v. HEW, 463 F.2d 38 (2d Cir. 1972); Webb v. Finch, 431 F.2d 1179 (6th Cir. 1970); Alamo v. Richardson, 355 F.Supp. 314 (D.C.P.R.1972); and Roman v. Secretary, HEW, 355" }, { "docid": "22110468", "title": "", "text": "when the Appeals Council denied review in July 1979. In August, plaintiff filed this pro se action in the district court seeking review of the Secretary’s decision. After argument, and apparently without an opinion, Judge Weinstein granted the Secretary’s motion for judgment on the pleadings and dismissed the complaint in April 1980. This appeal by plaintiff pro se followed; on plaintiff’s motion, we assigned him counsel. II To be eligible for SSI disability payments, an applicant must demonstrate that “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.... ” 42 U.S.C. § 1382e(a)(3)(B). A court reviewing the decision of the Secretary is limited by statute to determining whether the Secretary’s conclusions are supported by substantial evidence on the record as a whole. 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g)); see also Parker v. Harris, 626 F.2d 225, 231-32 (2d Cir. 1980). In addition, a reviewing court must be satisfied that the claimant has had “a full hearing under the Secretary’s regulations and in accordance with the beneficent purposes of the Act.” Gold v. Secretary of HEW, 463 F.2d 38, 43 (2d Cir. 1972). One of the factors which the court must consider is whether the claimant was represented by counsel at the administrative hearing. Id. Although a claimant for SSI disability benefits is entitled to be represented by counsel if he so desires, the Secretary is under no obligation to furnish such counsel. If, however, the claimant does appear pro se, the ALJ has a “duty ... to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts....” Id. See also Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir. 1975). In such cases where the claimant was “handicapped by lack of counsel” at the administrative hearing, the reviewing court has “a duty to make a ‘searching investigation’ of the record” to ensure that the claimant’s rights" }, { "docid": "22842438", "title": "", "text": "— as by ordering easily obtained further or more complete reports or requesting further assistance from a social worker or psychiatrist or key witness. Currier v. Secretary of HEW, 612 F.2d 594, 598 (1st Cir. 1980) (citations omitted). As the court noted, the Secretary’s responsibility to develop evidence is even greater when the claimant is obviously mentally impaired. Id. Because of plaintiff’s readily apparent serious mental disorder and the ALJ’s notice of the possibility that the disorder might be war-related, we believe that the Secretary, through his representative, the ALJ, had a duty which has not been adequately discharged to develop the record of the etiology of the illness, its course, and its severity. The record does not reveal whether the ALJ, in referring plaintiff for psychological examinations after the hearing, ever sought an opinion as to whether plaintiff’s disability had commenced prior to March 31, 1972. The ALJ should therefore have asked the experts who had examined plaintiff whether they were able to express an opinion as to whether plaintiff suffered from mental illness of disabling severity-while on insured status in 1972 and whether mental illness of that severity has existed continuously to the present. Posing such a question places no undue hardship on the administrative proceeding, and its answer may establish the validity of plaintiff’s claim. The record is not so persuasive as to rule out any connection between DeBlois’ mental state at hearing and his wartime injury. It may well be that the psychiatrists and psychologists now examining the plaintiff will not be able to express an opinion as to his mental condition since he last qualified for disability coverage. Then again, it may be that they can. Fairness dictates that when a claimant obviously suffering from a severe mental disorder appears at a social security proceeding without counsel, the ALJ undertake to protect his interests at the hearing. We therefore conclude that good cause has been shown for remand to the Secretary for the limited purpose of ascertaining whether the experts who have examined plaintiff are able to testify that his illness has been of disabling" } ]

[ { "docid": "16449257", "title": "", "text": "the proper facts. Higgins v. Commissioner, 312 U.S. 212 (1941); Snyder v. Commissioner, 295 U.S. 134 (1935); Commissioner v. Nubar, 185 F.2d 584 (4th Cir. 1950). By contrast the activity of a mere \"invest[or] is not a trade or business.” Whipple v. Commissioner, 373 U.S. 193, 202 (1963). Neither the code, the regulations, nor the courts have yet provided a precise definition as to when an individual taxpayer’s behavior is that of a trader rather than an investor in corporate stocks. According to Higgins, a factual analysis in each case is required to determine if a particular taxpayer’s securities activities rise to the level of \"carrying on a business.” 312 U.S. at 217. It has been ruled, however, that: * * * [A] taxpayer who, for the purpose of making a livelihood, devotes the major portion of his time to speculating on the stock exchange may treat losses thus incurred as having been sustained in the course of a trade or business. * * * [Snyder, 295 U.S. at 139.] Establishing continuity of investment activity is not enough. The taxpayer must do more than \"merely [keep] records and [collect] interest and dividends from his securities, through managerial attention for his investments.” Higgins, 312 U.S. at 218; Wilson v. United States, 179 Ct. Cl. 725, 746, 376 F.2d 280, 293 (1967). In effect, a \"trader” is an active investor in that he does not passively accumulate earnings, nor merely oversee his accounts, but manipulates his holdings in an attempt to produce the best possible yield. That is, the trader’s profits are derived through the very acts of trading — direct management of purchasing and selling. Purvis v. Commissioner, 530 F.2d 1332 (9th Cir. 1976); Chiang Hsiao Liang, 23 T.C. 1040 (1955). Even absent a clear judipial demarcation between trader and investor, it is apparent that plaintiff taxpayer’s securities activities place him close to the trader end of the spectrum. Aside from a small annual salary for sitting on the board of an oil-producing company, his entire and substantial income was derived from his trading. He devoted virtually his whole working day" } ]

[ { "docid": "651563", "title": "", "text": "as when used in section 162, which provides for deductions of ordinary and necessary expenses incurred in carrying on any trade or business. “Trade or business” is nowhere defined in the Internal Revenue Code or in the regulations. Whether a particular taxpayer’s activities amount to the carrying on of a trade or business is essentially a factual determination. Higgins v. Commissioner, 312 U.S. 212, 217 (1941). While there are various factors to be considered in making such a determination, none alone is dispositive. Herbert R. Barrett, 58 T.C. 284, 288 (1972), acq. in result 1974-1 C.B. 1. Respondent urges an expansive reading of the term “trade or business” and turns first for support to Flint v. Stone Tracy Co., 220 U.S. 107, 171 (1911), wherein the Supreme Court spoke of business as that “which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.” It is well settled that this broad definition, adopted for construction of the Corporation Tax Law of 1909, is not controlling here. United States v. Pyne, 313 U.S. 127, 131 (1941); Higgins v. Commissioner, supra at 217; McDowell v. Ribicoff, 292 F.2d 174,178 (3d Cir. 1961). Respondent is correct in asserting that the continuity and regularity of petitioner’s activities and the presence of a profit motive are elements of carrying on a trade or business. While these elements, which petitioner substantially concedes to be present in this case, may be necessary to a finding of a trade or business, they are not sufficient. A trade or business involves something more than the production of income for Federal income tax purposes. Compare sec. 162 with sec. 212. As further support for his position, respondent cites several cases in which he contends that a trade or business was found to exist where there was no showing of an offering of goods or services to others. Thus, in Paul J. O’Connell, T.C. Memo. 1974-128, a tax consultant was held liable for the self-employment tax notwithstanding that he had but a single client. But, there was no evidence that he did not seek other" }, { "docid": "6358997", "title": "", "text": "business. OPINION The sole issue for decision is whether capital was a material income-producing factor in the business of Western Columbia within the meaning of sections 911(b) and 1348. The petitioner has the burden of disproving the Commissioner’s determination. Rule 142(a), Tax Court Rules of Practice and Procedure; Welch v. Helvering, 290 U.S. 111 (1933). For 1975, section 1348 provided that the maximum tax on earned income was 50 percent, and section 1348(b)(1) adopted, for purposes of such section, the definition of earned income contained in section 911(b). Section 911(b) stated in part: (b) Definition of Earned Income. — For purposes of this section, the term \"earned income” means wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered * * * . In the case of a taxpayer engaged in a trade or business in which both personal services and capital are material income-producing factors, under regulations prescribed by the Secretary, a reasonable allowance as compensation for the personal services rendered by the taxpayer, not in excess of 30 percent of his share of the net profits of such trade or business, shall be considered as earned income. This definition has been amplified by section 1.1348-3(a)(3)(ii), Income Tax Regs., which provided: (3) Earned income from business in which capital is material. * * * (ii) Whether capital is a material income-producing factor must be determined by reference to all the facts of each case. Capital is a material income-producing factor if a substantial portion of the gross income of the business is attributable to the employment of capital in the business, as reflected, for example, by a substantial investment in inventories, plant, machinery, or other equipment. In general, capital is not a material income-producing factor where gross income of the business consists principally of fees, commissions, or other compensation for personal services performed by an individual. Thus, the practice of his profession by a doctor, dentist, lawyer, architect, or accountant will not, as such, be treated as a trade or business in which capital is a material income-producing factor even though the practitioner" }, { "docid": "18934433", "title": "", "text": "receive a fee of $50.00 for each directors’ meeting you attend. It is specifically provided in the agreement that you shall at no time accept the position of chairman of the board. By an amendment to the agreement, the Bank agrees not to ask you to serve as a member of the executive committee of the board. Either party may terminate the agreement by giving written notice to the other prior to December 31st of any year during the term of the agreement of such party’s intent to terminate it. The amendment to the agreement also provides that it is anticipated that the time required for your services as a consultant will not require more than two mornings per week on the average during any one year. You expect to be available to perform similar consultant services for banks outside of Tyler, Texas. [Emphasis supplied.] It is stipulated that for purposes of this case, the above statement is true. During 1972, petitioner performed consultative and advisory services for the bank, for which he received $12,000 compensation. He performed no such services for any other bank or financial institution. Petitioners contend that none of the money received in 1972 pursuant to the consulting agreement is income from a “trade or business” carried on by petitioner. Respondent argues to the contrary that petitioner was carrying on a “trade or business,” the income from which is subject to self-employment tax under section 1401. Section 1401(a) imposes a tax for each taxable year on the “self-employment income” of every individual. “Self-employment income” is defined as “net earnings from self-employment” derived by an individual (other than a nonresident alien) during any taxable year, with certain exceptions not pertinent here. Sec. 1402(b). “Net earnings from self-employment” is in turn defined in section 1402(a) to mean gross income derived by an individual from any “trade or business” carried on by such individual. Finally, section 1402(c) provides that the term “trade or business” shall, for purposes of section 1402, have the same meaning as it does when used in section 162. Section 162 provides no further definition for" }, { "docid": "17072957", "title": "", "text": "$7,800. Thus, the tax involved herein is 6.9 percent of $7,800, or $538.20. “Self-employment income” is defined in section 1402 (b) as the “net earnings from self-employment,” and “net earnings from self-employment” is defined in section 1402 (a) to mean the gross income derived by an individual from any “trade or business” carried on by such individual. Section 1402(c) provides that “the term ‘trade or business,’ when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in section 162 (relating to trade or business expenses), except that such term shall not include * * * (2) the performance of service by an individual as an employee.” Section 162(a) provides that “IN GeNeral. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Thus, the determination of the ultimate issue herein depends upon the question whether the $12,000 which petitioner received from Philip Carey in 1969 was income derived by him from a “trade or business” carried on by him. Neither the Internal Revenue Code nor the court decisions contain any explicit definition of the phrase “trade or business,” or of what constitutes “carrying on any trade or business.” Various criteria have been suggested for consideration but no single factor of itself has been held controlling in all cases. See, for example, Rev. Rul. 58-112,1958-1 C.B. 323. In Higgins v. Commissioner, 312 U.S. 212 (1941), rehearing denied 312 U.S. 714, the Supreme Court stated: “To determine whether the activities of a taxpayer are ‘carrying on a business’ requires an examination of the facts in each case.” In the present case, the terms of the agreement of January 5,1962, are of primary importance. Petitioner was, and for some time had been, an executive vice president of Philip Carey. On January 5, 1962, in order that it might be assured of his full-time services for a period of years, and to be assured that thereafter he would not compete with it but would render consulting" }, { "docid": "18934434", "title": "", "text": "compensation. He performed no such services for any other bank or financial institution. Petitioners contend that none of the money received in 1972 pursuant to the consulting agreement is income from a “trade or business” carried on by petitioner. Respondent argues to the contrary that petitioner was carrying on a “trade or business,” the income from which is subject to self-employment tax under section 1401. Section 1401(a) imposes a tax for each taxable year on the “self-employment income” of every individual. “Self-employment income” is defined as “net earnings from self-employment” derived by an individual (other than a nonresident alien) during any taxable year, with certain exceptions not pertinent here. Sec. 1402(b). “Net earnings from self-employment” is in turn defined in section 1402(a) to mean gross income derived by an individual from any “trade or business” carried on by such individual. Finally, section 1402(c) provides that the term “trade or business” shall, for purposes of section 1402, have the same meaning as it does when used in section 162. Section 162 provides no further definition for “trade or business,” other than that which has evolved under prevailing case law under that section. Neither the Internal Revenue Code nor the court decisions contain an explicit definition of the term “trade or business” or of what constitutes “carrying on any trade or business.” Barrett v. Commissioner, 58 T.C. 284, 288 (1972). Although various factors have been considered in deciding whether a taxpayer’s activities are a trade or business, none alone is dispositive. Gentile v. Commissioner, 65 T.C. 1, 4 (1975); Barrett v. Commissioner, supra at 288. Thus it is essentially a factual determination. See Higgins v. Commissioner, 312 U.S. 212, 217 (1941). In this case, petitioner was an executive of the bank prior to his retirement. When he retired in 1969, petitioner continued to provide consulting services to the bank as an independent contractor. In return for a consulting fee of $1,000 per month, he also agreed not to perform similar services for any business that competes in a substantial degree with the bank. Services were in fact performed by petitioner for the" }, { "docid": "22008190", "title": "", "text": "Internal Revenue Code of 1954 defines self-employment income: “The term ‘self-employment income’ means the net earnings from self-employment derived by an individual during any taxable year . . . .” 26 U.S.C. § 1402(b). Section 1402(a) defines “net earnings from self-employment” as “the gross income derived by an individual from any trade or business carried on by such individual, less the deductions allowed by this subtitle which are attributable to such trade or business . . . .” “Trade or business” has the same meaning here as it does in section 162 of the Code. 26 U.S.C. § 1402(c). Plaintiffs seek to deduct 70 percent of the amount of their gross income, claiming that that proportion of their income was derived from capital investment and should be deducted as a return of capital. Deductions are a matter of legislative grace, however, and it is the burden of the taxpayer to demonstrate that he is entitled to a deduction the Code provides. E. g., New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934), Plaintiffs concede they lack statutory authority for the deduction they seek, but argue instead that if section 1402 does not authorize the deduction, it deprives them of equal protection, as per the Fifth Amendment. See Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971); Moritz v. Commissioner, 469 F.2d 466 (10th Cir. 1972), cert. denied, 412 U.S. 906, 93 S.Ct. 2291, 36 L.Ed.2d 971 (1973). Other provisions of the Code, which deal with a trade or business in which both personal services and capital investment are material income-producing factors, allocate up to 30 percent of income as “earned income,” i. e., compensation for personal services. See, 26 U.S.C. § 911 (income earned outside the United States); id. §§ 1303(c)(2)(C), 1304(c)(3) (income averaging); id. § 1348(b)(1) (maximum tax rate on personal service income). Section 401(c)(2), dealing with retirement plans for self-employed individuals, used the allocation of section 911(b) until 1966, but now defines “earned income” merely as “the net earnings from self-employment (as defined" }, { "docid": "10392212", "title": "", "text": "capital are material income-producing factors. opinion For bona fide residents of a foreign country, section 911(a) (2) provides for the exclusion from taxable income of limited “amounts received from sources without the United States * * * which constitute earned income attributable to services performed” during the period of foreign residency. Section 911(b) defines “earned income” to mean “wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered.” This section further provides that, in the case of a taxpayer engaged in a trade or business “in wMoh both personal services and capital are material income-producing factors,” an amount not in excess of 30 percent of the “net profits” of the business shall be considered as “earned income.” Respondent contends that petitioner’s body shop business is one in which capital is a material income-producing factor, and that, therefore, petitioner’s exclusion is limited to 30 percent of his net profits from the business. Petitioner argues that the income from his business is derived principally from labor, and that capital is not a material income-producing factor. The issue as to whether a trade or business is one in which “both personal services and capital are material income-producing factors” has arisen under several statutes and in a variety of factual settings. See discussion in Warren R. Miller, Sr., 51 T.C. 755, 759 (1969); Fred J. Sperapani, 42 T.C. 308, 334 (1964). The question is fundamentally factual in nature. Capital is a material income-producing factor if a substantial portion of the gross income of the business is attributable to the employment of capital in the business conducted by the enterprise. Moreover, capital is ordinarily a material income-producing factor if the operation of the business requires substantial inventories or substantial investments in plant, machinery, or other equipment. On the other hand, capital is not a material income-producing factor where the gross income of the enterprise consists principally of fees, commissions, or other compensation for personal services. See Fred J. iSperapani, supra at 333. If capital is “utilized merely to pay the cost of salaries, wages, office space, and general business" }, { "docid": "9825679", "title": "", "text": "amount of the deduction claimed by the petitioner was allocable to the portion of his dwelling unit which was so used. Respondent contends, however, that petitioner is not entitled to a deduction under section 280A for business use of his home because his rental activities did not constitute a business for purposes of that section or, in the alternative, if such activities did constitute a business, then petitioner’s principal place of business was Kaiser Permanente Hospital, where he was employed as a dermatologist, and not his home office from which he conducted his rental business. We turn first to the issue of whether petitioner’s rental activities constituted a business for purposes of section 280A. It is respondent’s position that the word “business” was used in section 280A to distinguish activities which qualify as a “trade or business” under section 162 from the holding of property for production of income within the meaning of section 212(1) and (2) and that petitioner was merely holding his rental properties for the production of income and was not engaged in the trade or business of renting property. We agree with respondent’s argument to the extent that it rests upon the proposition that no deduction under section 280A is allowable for use of a home in connection with an activity which is merely for the production of income within the meaning of section 212 but is not a “trade or business” under section 162. This position is amply supported by the legislative history of section 280A. The Senate Finance Committee report states: An allocable portion of expenses paid or incurred with respect to the use of a dwelling unit which is used by the taxpayer both as a residence and in connection with income producing activities (sec. 212) will not be allowable as deductions under the provisions of this section unless the income producing activity constitutes a trade or business. For example, no deduction will be allowed if a taxpayer who is not in the trade or business of making investments, uses a portion of his residence (exclusively and on a regular basis) to read" }, { "docid": "4813191", "title": "", "text": "deduction. Petitioners apparently recognize that section 1341 provides no foundation for the deduction of legal fees, sec. 1.1341-l(h), Income Tax Regs., but here contend that the deduction for the legal fees should be allowed as claimed. Section 162(a), on which petitioners rely, allows a deduction for all the ordinary and necessary expenses paid or incurred in “carrying on any trade or business.” Section 212 allows a deduction for all the ordinary and necessary expenses paid or incurred “for the production or collection of income” without regard to whether the activity from which the income is derived is a trade or business. Section 212 does not create new categories of deductible expenses in addition to the section 162 deductions; it simply makes the old deductions applicable to new types of income-producing activities. Boagni v. Commissioner, 59 T.C. 708, 712 (1973), and cases cited therein. These sections, however, must be read in the light of section 263, which denies a deduction for “permanent improvements or betterments made to increase the value of any property or estate.” By section 1.263(a)-2(c), Income Tax Regs., and corresponding prior regulations, section 263 has been interpreted for many years to require the capitalization of the “cost of defending or perfecting title to property.” “The non-deductibility of capital expenditures, founded upon the principle that related disbursements and receipts should be given consistent tax treatment, is * * * a basic limitation upon * * * [sections 162 and 212].” Spangler v. Commissioner, 323 F.2d 913, 918 (9th Cir. 1963), affg. a Memorandum Opinion of this Court. Petitioner was not engaged in 1981 or 1984 in carrying on a trade or business of trading in options or other securities within the meaning of section 162(a). He was a broker. His buying and selling of securities on his own account was not a trade or business. See Higgins v. Commissioner, 312 U.S. 212 (1941). On their 1984 income tax return, petitioners reported numerous stock purchases and sales as capital transactions. In fact, on their 1981 return, petitioners reported the options purchase and sale profit here in dispute as a short-term" }, { "docid": "17072956", "title": "", "text": "that date the petitioner has not competed with either such company, directly or indirectly. During the taxable year 1969, Philip Carey paid petitioner $12,000 as provided by the agreement of January 5,1962. In the petitioners’ income tax return for 1969 they reported salary income of $11,666.76 for Herbert from Action Housing For Greater Cincinnati, salary of $5,971.50 for Joyce, annuity income of $8,215.08 from Philip Carey, and $12,000 under miscellaneous income as from “Consulting Contract — Philip Carey Corp.” No Treasury Form W-2 relating to the consulting contract item was attached. Respondent contends that the $12,000 Herbert R. Barrett received in 1969 under the agreement with Philip Carey was self-employment income subject to the tax imposed by section 1401, I.R.C. 1954. We do not agree. In addition to other taxes, section 1401 imposes a tax for each taxable year on the “self-employment income” of every individual. The rate for 1969 is 6.3 percent for old-age, survivors, and disability insurance, and 0.60 percent for hospital insurance. Section 1402(b) (1) (E) limits “self-employment income” in 1969 to $7,800. Thus, the tax involved herein is 6.9 percent of $7,800, or $538.20. “Self-employment income” is defined in section 1402 (b) as the “net earnings from self-employment,” and “net earnings from self-employment” is defined in section 1402 (a) to mean the gross income derived by an individual from any “trade or business” carried on by such individual. Section 1402(c) provides that “the term ‘trade or business,’ when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in section 162 (relating to trade or business expenses), except that such term shall not include * * * (2) the performance of service by an individual as an employee.” Section 162(a) provides that “IN GeNeral. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” Thus, the determination of the ultimate issue herein depends upon the question whether the $12,000 which petitioner received from Philip Carey in 1969 was income" }, { "docid": "5593394", "title": "", "text": "to finance social security benefits paid to self-employed individuals. See Patterson v. Commissioner, 740 F.2d 927, 929 (11th Cir.1984); S.Rep. No. 81-1669, at 153-163 (1950), reprinted in 1950 U.S.C.C.A.N. 3287. An independent insurance agent generally is subject to self-employment tax on self-employment income. See Erickson v. Commissioner, 64 T.C.M. (CCH) 963 (1992), aff'd 1 F.3d 1231 (1st Cir.1993) (unpublished table opinion) (independent insurance agent subject to self-employment tax on commission income); Simpson v. Commissioner, 64 T.C. 974, 983, 989, 1975 WL 3150 (1975) (insurance agent was independent contractor subject to self-employment tax). The issue is whether Mr. Schelble’s extended earnings constitute “self-employment income.” “Self-employment income” means “net earnings from self-employment.” 26 U.S.C. § 1402(b). “Net earnings from self-employment” is “gross income derived ... from any trade or business carried on by such individual,” less allowable deductions. 26 U.S.C. § 1402(a). For income to be self-employment income, “there must be a nexus between the income received and a trade or business that is, or was, actually carried on.” Newberry v. Commissioner, 76 T.C. 441, 444, 1981 WL 11375 (1981). The “income must arise from some actual (whether present, past or future) income-producing activity.” Id. at 446. “[S]elf-employment income is determined by the source of the income, not the taxpayer’s status at the time the income is realized.” Shumaker v. Commissioner, 648 F.2d 1198, 1200 (9th Cir.1981); see Treas. Reg. § 1.1402(a)-l(e) (self-employment income may include payments received from services provided in a prior taxable year). Capital gains or losses are excluded from self-employment income. See 26 U.S.C. § 1402(a)(3)(A). Mr. Schelble makes two alternative arguments why his extended earnings payments are not self-employment income: (1) the payments are not sufficiently derived from his prior insurance business because he received the payments for terminating his relationship with the Companies; or (2) the payments are for sale of his insurance business, generating capital gain excluded from self-employment income. These are the same arguments Mr. Schelble made to the Tax Court. We review each argument in turn. Payments Derived From Prior Trade or Business Mr. Schelble argues his extended earnings payments did not “derive”" }, { "docid": "10997581", "title": "", "text": "sec. 409 (1964). Payments of social security benefits are decreased by “excess earnings.” 42 U.S.C. sec. 403(b) (1964). An individual’s earnings are the sum of his wages and net earnings from self-employment. 42 U.S.C. sec. 403(f)(5)(A) (1964). Net earnings from self-employment are determined as provided in sec. 411. 42 TT.S.C. sec. 403(f) (5) (B) (1) (Supp. 1969). This term means the gross income, as computed under ch. 1 of tit. 26, derived by an Individual from any trade or business carried on by him, less the deductions allowed under that chapter which are attributable to his trade or business. 42 TJ.S.C. sec. 411(a) (Supp. 1969). The harshness of respondent’s determination herein Is brought Into clear focus by examination of the pertinent amounts for the years 1964 and 1965. Thus, In 1964, petitioner received gross commissions of $10,713.75, but had net profit of only $1,138.75; in 1965, he received gross commissions of $5,274 and had a net loss of $136.50. Where the Social Security Act and corresponding tax provisions are mutually related, or aimed at accomplishing the same results, they are read together. See Brown & Bartlett v. United States, 330 F. 2d 692, 694 (C.A. 6, 1964) ; cf. United States v. Silk, 331 U.S. 704, 711 (1947). The same principle should be applicable where the congressional purpose is to adjust the tax treatment of other retirement income to that accorded social security benefits. This Interpretative problem does not arise in applying the Income-exclusion provisions of sec. 911, because par. (a) (2) thereof expressly disaUows “any deductions (other than those allowed by section 151, relating to personal exemptions) properly allocable to or chargeable against amounts excluded from gross income under this subsection.” Compare sec. 401(c)(2)(A), relating to pensions for self-employed persons, which defines \"earned income” to mean “the net earnings from self-employment (as defined in section 1402(a)), but such net earnings shall be determined — (i) only with respect to a trade or business in which personal services of the taxpayer are a material income-producing factor * * The language of sec. 911(b) was derived from the earned-income credit provisions" }, { "docid": "9457010", "title": "", "text": "any trade or business carried on by such individual * *.” Subsection (c) of Section 211 provides that “The term ‘trade or business’, when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in [Section 162 of the Internal Revenue Code of 1954] * * *.” Section 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a) provides: “(a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * Thus, to determine whether the plaintiff was in the “trade or business” of being an executrix we must determine whether she would have been allowed to deduct all the ordinary and necessary expenses paid or incurred in the taxable year in carrying on her activities as executrix of the Estate of Elizabeth M. Hunter, pursuant to Section 162. The Internal Revenue Code itself does not define the phrase “trade or business”. Nor has any court formulated an explicit definition. On the contrary, it has been stated that “To determine whether the •activities of a taxpayer are ‘carrying on a ■business’ requires an examination of the facts in each case.” Higgins v. Commissioner, 1941, 312 U.S. 212, 217, 61 S.Ct. 475, 478, 85 L.Ed. 783. Broader criteria have been suggested. For example, it is generally agreed that to constitute a trade or business an activity must be initiated and carried on with the good faith intention of making a profit. See, e. g., International Trading Co. v. Commissioner, 7 Cir., 1960, 275 F.2d 578; Doggett v. Burnet, 1933, 62 App.D.C. 103, 65 F.2d 191, 194. In addition, it is frequently stated that “ ‘ * * * carrying on any trade or business’, within the contemplation of [§ 162] involves holding one’s self out to others as engaged in the selling of goods or services.” Deputy v. DuPont, 1940, 308 U.S. 488, 499, 60 S.Ct. 363, 369, 84 L.Ed. 416; White’s Will v. Commissioner, 3 Cir., 1940, 119" }, { "docid": "9457009", "title": "", "text": "except the residuary legatees had been paid: It appears that all tax matters concerning the estate had been taken care of by March 2, 1957, less than twenty-one months after she was appointed and at that time the estate was ready to be closed.” This action was commenced in the court below pursuant to Section 205(g) of the Act, 42 U.S.C.A. § 405(g), which provides for review by a United States district court of final decisions of the Secretary. The court reversed the decision of the Appeals Council upon its finding that the “plaintiff in serving as executrix of the estate of Elizabeth M. Hunter was engaged in carrying on a trade or business, within the meaning of the Social Security Act and her remuneration constituted net earnings from self-employment.” No opinion was handed down but judgment was entered in accordance with the finding. It is from this judgment that the Secretary appeals. Section 211(a) provides that “The term ‘net earnings from self-employment’ means the gross income * * * derived by an individual from any trade or business carried on by such individual * *.” Subsection (c) of Section 211 provides that “The term ‘trade or business’, when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in [Section 162 of the Internal Revenue Code of 1954] * * *.” Section 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a) provides: “(a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * Thus, to determine whether the plaintiff was in the “trade or business” of being an executrix we must determine whether she would have been allowed to deduct all the ordinary and necessary expenses paid or incurred in the taxable year in carrying on her activities as executrix of the Estate of Elizabeth M. Hunter, pursuant to Section 162. The Internal Revenue Code itself does not define the phrase “trade or business”. Nor" }, { "docid": "15195332", "title": "", "text": "income which is earned income within the meaning of section 401(c)(2)(C) or section 911(b) or which is an amount received as a pension or annuity which arises from an employer-employee relationship.” Sec. 1348(b)(1)(A). Section 911(b) incorporated into section 1348 defines earned income in the following manner: wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered, but does not include that part of the compensation derived by the taxpayer for personal services rendered by him to a corporation which represents a distribution of earnings or profits rather than a reasonable allowance as compensation for the personal services actually rendered. * * * Section 162(a)(1) provides that, in computing its taxable income, a corporation shall be allowed as a deduction “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered.” This Court has held that compensation which qualifies as “a reasonable allowance * * * for personal services actually rendered” under section 162(a)(1) qualifies as earned income for purposes of section 1348; conversely, compensation which is unreasonable under section 162(a)(1) does not so qualify. Kennedy v. Commissioner, 72 T.C. 793, 806 (1979), reversed as to amount of reasonable compensation 671 F.2d 167 (6th Cir. 1982). Therefore the case law defining “reasonable compensation” under section 162(a)(1) is controlling for purposes of this case. Petitioners contend that the entire $886,646 paid to Dr. Wallace by Chunchula was properly classified as earned income since this entire amount was paid for services rendered. Respondent contends that only $36,000 of the amount that Dr. Wallace received from Chunchula in 1980 was earned income, and the remainder was a dividend. Therefore, respondent computed Dr. Wallace’s earned income from Chunchula, taxable at a maximum rate of 50 percent, to be $36,000. The reasonableness of compensation is a question of fact to be determined from the record in each case. Charles Schneider & Co. v. Commissioner, 500 F.2d 148, 151 (8th Cir. 1974), affg. a Memorandum Opinion of this" }, { "docid": "5144384", "title": "", "text": "allowable under this chapter for the taxable year without regard to whether or not such activity is engaged in for profit, and (2) a deduction equal to the amount of the deductions which would be allowable under this chapter for the taxable year only if such activity were engaged in for profit, but only to the extent that the gross income derived from such activity for the taxable year exceeds the deductions allowable by reason of paragraph (1). (c) Activity Not Engaged in for Profit Defined. — For purposes of this section, the term \"activity not engaged in for profit” means any activity other than one with respect to which deductions are allowable for the taxable year under section 162 or under paragraph (1) or (2) of section 212. Petitioners contend that the movie was property held either for use in a trade or business within the meaning of sec. 162 or for the production of income under sec. 212. As petitioners claimed their pro rata share of the loss reported on the partnership return of income for the years in issue rather than separately accounting for their share of the claimed expenses as provided in sec. 1.702-l(aX8Xi), Income Tax Regs., it is apparent that petitioners regarded the movie as \"property used in a trade or business.” Also, petitioners’ argument is mainly under sec. 162, with merely a statement that the profit motive determination under sec. 212 would be the same. Sec. 162(a) provides in part as follows: SEC. 162(a). In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *" }, { "docid": "651562", "title": "", "text": "OPINION The sole issue presented for decision is whether petitioner’s gambling activities constituted a trade or business so as to subject income derived therefrom to inclusion as self-employment income for purposes of the self-employment tax imposed by section 1401. Petitioner urges that, although he gambled regularly during 1971 and depended solely upon his gambling winnings for the support of his family of five, he was not engaged in a trade or business because he neither provided nor held himself out as a provider of any goods or services to any other person. Respondent argues that a trade or business is not limited to the offering of goods or services to others; rather it is an individual’s everyday efforts to earn a living, characterized by continuity, regularity, and profit motive. The Self-Employment Contributions Act of 1954, sections 1401, et seq., imposes a tax on net earnings from self-employment “derived by an individual from any trade or business carried on by such individual.” Section 1402(c) provides that the term “trade or business” shall have the same meaning as when used in section 162, which provides for deductions of ordinary and necessary expenses incurred in carrying on any trade or business. “Trade or business” is nowhere defined in the Internal Revenue Code or in the regulations. Whether a particular taxpayer’s activities amount to the carrying on of a trade or business is essentially a factual determination. Higgins v. Commissioner, 312 U.S. 212, 217 (1941). While there are various factors to be considered in making such a determination, none alone is dispositive. Herbert R. Barrett, 58 T.C. 284, 288 (1972), acq. in result 1974-1 C.B. 1. Respondent urges an expansive reading of the term “trade or business” and turns first for support to Flint v. Stone Tracy Co., 220 U.S. 107, 171 (1911), wherein the Supreme Court spoke of business as that “which occupies the time, attention, and labor of men for the purpose of a livelihood or profit.” It is well settled that this broad definition, adopted for construction of the Corporation Tax Law of 1909, is not controlling here. United States v." }, { "docid": "15195331", "title": "", "text": "trade or business of farming. Respondent recognizes that Dr. Wallace is entitled to deduct feed expenses as a farmer, but contends the deduction is subject to the limitations of section 464. Whether Dr. Wallace may deduct feed expenses is not in issue; the issue is when he is allowed the deduction for these expenses. Factors used to determine whether an activity is engaged in for profit do not aid in making this determination. We hold that Dr. Wallace was a limited entrepreneur within the meaning of section 464. Since Dr. Wallace was a limited entrepreneur, his cattle feed business meets the definition of farming syndicate and the deduction limita tions for feed expenditures of section 464 are applicable. Accordingly, Dr. Wallace is entitled to deduct only the expenditures for feed that was actually consumed during the taxable year to which the deduction applies. Characterization of Income Issue Section 1348 as applicable to the calendar year 1980 provided for a maximum tax of 50 percent on personal service income. Personal service income was defined as “any income which is earned income within the meaning of section 401(c)(2)(C) or section 911(b) or which is an amount received as a pension or annuity which arises from an employer-employee relationship.” Sec. 1348(b)(1)(A). Section 911(b) incorporated into section 1348 defines earned income in the following manner: wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered, but does not include that part of the compensation derived by the taxpayer for personal services rendered by him to a corporation which represents a distribution of earnings or profits rather than a reasonable allowance as compensation for the personal services actually rendered. * * * Section 162(a)(1) provides that, in computing its taxable income, a corporation shall be allowed as a deduction “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered.” This Court has held that compensation which qualifies as “a reasonable allowance * * * for" }, { "docid": "10997580", "title": "", "text": "material income-producing factors, under regulations prescribed byi the Secretary or his delegate, a reasonable allowance as compensation for the personal services rendered by the taxpayer, not in excess of 30 percent of his share of the net profits of such trade or business, shall be considered as earned income. Other provisions of see. 37 also parallel the Social Security Act. For example, the eligibility requirement under sec. 37 (b) of 10 years in which “earned income” is received corresponds with the Social Security Act test of covered employment in 40 quarters; and the maximum amount of retirement income prescribed by sec. 37 corresponds with the maximum social security benefit. Sec. 37 has been amended several times and the committee reports accompanying the amendments have carefully explained that the purpose was to conform the section with amendments to the Social Security Act. S. Rept. No. 2202, 87th Cong., 2d Sess. (1962), 1962-3 C.B. 1238-1239; S. Rept. No. 830, 88th Cong., 2d Sess. (1964), 1964-1 (Part 2) C.B. 542-543. Wages include all remuneration for employment. 42 U.S.C. sec. 409 (1964). Payments of social security benefits are decreased by “excess earnings.” 42 U.S.C. sec. 403(b) (1964). An individual’s earnings are the sum of his wages and net earnings from self-employment. 42 U.S.C. sec. 403(f)(5)(A) (1964). Net earnings from self-employment are determined as provided in sec. 411. 42 TT.S.C. sec. 403(f) (5) (B) (1) (Supp. 1969). This term means the gross income, as computed under ch. 1 of tit. 26, derived by an Individual from any trade or business carried on by him, less the deductions allowed under that chapter which are attributable to his trade or business. 42 TJ.S.C. sec. 411(a) (Supp. 1969). The harshness of respondent’s determination herein Is brought Into clear focus by examination of the pertinent amounts for the years 1964 and 1965. Thus, In 1964, petitioner received gross commissions of $10,713.75, but had net profit of only $1,138.75; in 1965, he received gross commissions of $5,274 and had a net loss of $136.50. Where the Social Security Act and corresponding tax provisions are mutually related, or aimed at accomplishing" }, { "docid": "22008189", "title": "", "text": "MEMORANDUM AND ORDER MacLAUGHLIN, District Judge. This is a suit for refund of taxes. Plaintiffs, husband and wife, assert that they overpaid taxes on self-employment income for 1973 and 1974 in the amounts of $302.52 and $498.66, respectively. They argue that the Internal Revenue Service incorrectly disallowed a deduction, representing a return of capital, from the gross income of their farm for each year. The Government has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). After considering the pleadings, memoranda, and arguments of the parties, the Court at a hearing on November 16, 1977, granted the Government’s motion. This memorandum explicates the reasons for decision outlined that day. The tax in question is assessed against self-employment income in order to finance Social Security benefits for the self-employed and their dependents. See, 26 U.S.C. § 1401. It is a tax on income and is levied, assessed, and collected with the regular income tax. The instant controversy concerns the amount of plaintiffs’ self-employment income subject to tax in 1973 and 1974. Section 1402 of the Internal Revenue Code of 1954 defines self-employment income: “The term ‘self-employment income’ means the net earnings from self-employment derived by an individual during any taxable year . . . .” 26 U.S.C. § 1402(b). Section 1402(a) defines “net earnings from self-employment” as “the gross income derived by an individual from any trade or business carried on by such individual, less the deductions allowed by this subtitle which are attributable to such trade or business . . . .” “Trade or business” has the same meaning here as it does in section 162 of the Code. 26 U.S.C. § 1402(c). Plaintiffs seek to deduct 70 percent of the amount of their gross income, claiming that that proportion of their income was derived from capital investment and should be deducted as a return of capital. Deductions are a matter of legislative grace, however, and it is the burden of the taxpayer to demonstrate that he is entitled to a deduction the Code provides. E. g., New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct." } ]

[ { "docid": "16040957", "title": "", "text": "understand what negotiations would have accomplished from the Army’s point of view. It had to decide what weapon would perform best under field conditions. Each manufacturer’s pistol was subjected to a series of demanding tests. See Smith & Wesson v. United States at 1077-80. The weapons of both Saco and Beretta performed well with Beretta having a slight edge. The other consideration was cost, and, here again, Beretta came out ahead. Saco has devoted a great deal of its brief to emphasizing how important a role negotiations play in procurement contracts. It is true that if the Army had gone over the weaknesses in their proposals with Saco and Beretta, either or both might have improved their scores. We do not think, however, that the Army must negotiate when the facts necessary for its decision are clear and it has notified the competitors that the offers made may be considered without negotiations. We also find that, under the circumstances, the amendment to the RFP and the request for BAFOs constituted all the negotiations that were required. We must bear in mind that “[c]ourts reviewing-government procurement decisions should respect the wide discretion accorded to contracting officers in their evaluation of bids and in their application of procurement regulations.” Kinnett Dairies, Inc. v. Farrow, 580 F.2d 1260, 1272 (5th Cir.1978). The contracting agencies “have wide discretion in determining the nature and scope of negotiations.” General Electric Company v. Seamans, 340 F.Supp. 636, 642 (D.D.C.1972). And “that discretion should not be questioned unless it is clearly shown to be without a rational basis.” Drexel Heritage Furnishings v. United States, 7 Cl.Ct. 134, 153 (1984). The Army determined that Saco’s proposal was technically acceptable and there were no deficiencies, “defined as that part of an offeror’s proposal which would not satisfy the Government’s requirements.” DAR 3-805.3(a). The requirement to conduct meaningful negotiations was, therefore, satisfied by a request for best and final offers. Meridian Junior College, B-221358, 86-1 CPD ¶ 262 (1986); Weinschel Engineering Co., Inc., B-217202, 85-1 CPD ¶ 574 (1985); Information Management, Inc., B-212358, 84-1 CPD ¶ 76 (1984). As the Comptroller" } ]

[ { "docid": "22564123", "title": "", "text": "are required to conduct “meaningful” discussions with all responsible offerors which submit proposals within the competitive range. See 48 C.F.R. § 15.306(d). Moreover, the FAR further emphasizes that “[t]he scope and extent of discussions are matters of contracting officer judgment.” 48 C.F.R. § 15.306(d)(3). Nothing in the FAR suggests that these provisions are any less applicable following an amendment to a solicitation. Plaintiff, however, argues that further discussions regarding the technical proposals are unwarranted because the Army already supplied Lockheed Martin with an opportunity to correct any material weaknesses in its technical proposal. But, the current version of the FAR provides otherwise. Solicitations issued after January 1, 1998, such as the one here, are governed by the FAR, as amended by the Federal Acquisition Circular (FAC) No. 97-02. The FAR part 15 rewrite, included in this amended version of the regulation, revised substantially the provisions that apply to negotiated procurements, including those provisions governing exchanges with offerors after the receipt of proposals, as set forth in 48 C.F.R. § 15.306. The prior version of the FAR contained provisions that had been read to limit drastically the extent to which agencies could conduct ongoing discussions with an offeror. Thus, agencies were prohibited, for example, from engaging in technical leveling, ie., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussions by pointing out weaknesses resulting from the offeror’s lack of diligence, competence, or inventiveness in preparing the proposal. See 48 C.F.R. § 15.610(d) (June 1997); Professional Servs. Group, Inc., B274289.2, 97-1 CPD ¶ 54, at 5, 1996 WL 776943 (Comp.Gen.1996). Agencies were also cautioned against reopening discussions after receipt of best and final offers, unless it was manifest that the information already available was inadequate to reasonably justi fy an award. 48 C.F.R. § 15.611(c) (June 1997). These restrictions, however, were eliminated by the part 15 rewrite, in favor of more general limits on exchanges. See 48 C.F.R. 15.306(e); Synetics, Inc. v. United States, 45 Fed.Cl. 1, 16-17 (1999). The current FAR provisions do not discourage agencies from resolving a given proposal’s" }, { "docid": "4561895", "title": "", "text": "prospective contractors shall be treated fairly and impartially but need not be treated the same.”). In particular, “a contracting officer has broad discretion in determining competitive range, and such decisions are not disturbed unless clearly unreasonable.” Birch & Davis Intern., Inc. v. Christopher, 4 F.3d 970, 973 (Fed.Cir.1993). Technical ratings of proposals are “discretionary determinations of procurement officials that a court will not second guess.” E.W. Bliss Co., 77 F.3d at 449. This court has held that unequal treatment claims are the “quintessential example of conduct which lacks a rational basis.” Hunt, 61 Fed.Cl. at 273 (emphasis added). Therefore the relevant inquiry here is whether the “Air Force unreasonably downgraded [Chenega’s] technical proposal for deficiencies that are substantively indistinguishable from those found in the proposals of the other offerors who remained in the competitive range.” Id. The SSET’s evaluation primarily focused on three primary deficiencies in [redacted]: the lack of specificity; numerous mathematical errors; and inconsistent statements. AR Tab 7, at 1720-30. Although the SSET scrutinized Plaintiffs proposal carefully, the same precision and consistency was applied to all proposals. See AR Tab 7, at 1707-09, 1713-119, 1733, 1735, 1738-39, 1744-45, 1748 (noting weaknesses in other proposals, such as erroneous calculations, inconsistent proposal provisions, and lack of detail). In fact, two other offerors, [redacted] and [redacted], had far fewer weaknesses as sessed than [redacted], but received the same or lower final ratings than Plaintiff. AR Tab 7, at 1706,1712,1730. Regarding the weaknesses assessed for mathematical and typographical errors, the RFP advised offerors “to submit initial proposals that are fully and clearly acceptable without the need for submission of additional information” and that the final determination of whether a proposal was acceptable or unacceptable may be made “solely on the basis of the initial proposal as submitted.” AR Tab 2, at 177. Plaintiffs pique that several of these errors could have easily been corrected through clarifications neglects the fact “Clarifications ... may occur when award without discussions is contemplated.” 48 C.F.R. § 15.306(a)(1) (emphasis added); see also L-3 Commc’ns EOTech, Inc. v. United States, 83 Fed.Cl. 643, 658 (2008) (“The decision to" }, { "docid": "19040487", "title": "", "text": "to Plaintiff, the agency did not lead Ceres into the areas of its proposal requiring amplification or correction, as required by the FAR, by failing to discuss cost, which it characterizes as a significant weakness in its proposal. Plaintiff suggests that the Government had an obligation to advise it that “its price was no longer competitive,” but this argument exhibits a fundamental misconception of the role of discussions in a procurement. Under FAR Subpart 15.3, the contracting officer must indicate to, or discuss with, each offeror still being considered for award, deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The contracting officer also is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. FAR 15.306(d)(3). Meaningful discussions “generally lead of-ferors into the areas of their proposals requiring amplification or correction.” Advanced Data Concepts, Inc. v. United States, 43 Fed.Cl. 410, 422 (1999). However, the FAR states that “the contracting officer is not required to discuss every area where the proposal could be improved” and that instead “[t]he scope and extent of discussions are a matter of contracting officer judgment.” FAR 15.306(d)(3). Under this provision, “‘[t]he government need not discuss every aspect of the proposal that receives less than the maximum score or identify relative weaknesses in a proposal that is technically acceptable but presents a less desirable approach than others.’ ” Cube Corp. v. United States, 46 Fed.Cl. 368, 384 (2000) (quoting ACRA, Inc. v. United States, 44 Fed.Cl. 288, 295 (1999)). As the Court has recognized, “unless an offeror’s costs constitute a significant weakness or deficiency in its proposal, the contracting officer is not required to address in discussions costs that appear to be higher than those proposed by other offerors.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 669 (2010) (citing SOS Interpreting, Ltd., B-287477.2, 2001 CPD ¶ 84 (May 16, 2001)). In the SSEB’s view, Ceres’ pricing was not a deficiency or" }, { "docid": "17754594", "title": "", "text": "in such authorities. In CBIS Federal, GAO found it unreasonable for an offeror to expect that a proposed contract manager would be available eight months after signing a letter of intent where the offeror had not been in contact with the individual at all during the period. Id. at 324. In this case, Mr. Halva, the proposed area manager, contacted Mr. Fulford by e-mail on December 27, 2000, reporting a change in employment and stating, with respect to the FAIR II contract, “DO NOT COUNT ME OUT, please.” Exhibit 2 to Fulford. Deck (emphasis in original). Mr. Fulford appears to have mistaken the law with respect to the propriety of communicating Mr. Halva’s possible unavailability to the EPA, and the failure to communicate appears to have concerned defendant. See AR at 241. Nevertheless, Mr. Fulford’s actions, however ill-advised, do not seem sufficiently likely to be able to support a finding of a breach of a legal duty to justify a TRO or preliminary injunction in the absence of significant evidence of an irreparable harm. 2. Meaningful Discussions Plaintiff argues that defendant failed to engage in meaningful discussions because it did not consider OAO’s responses to questions during the discussion phase of the procurement. TRO Mot. at 10. The Federal Acquisition Regulations (FAR) authorizes discussions between the government and offerors. FAR § 15.306(d) (“When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions.”). These discussions must be meaningful. Dynacs Eng’g Co. v. United States, 48 Fed.Cl. 124, 131 (2000). Discussions are meaningful if they include sufficient information to advise an offeror of the weaknesses in its proposal and enable it to address those weaknesses. Id. Plaintiff correctly asserts that the meaningful discussion requirement implies that the agency will consider the offeror’s responses to the agency’s questions and clarification requests. TRO Mot. at 10-12. It is not at all clear, however, that defendant failed to consider plaintiffs responses. In its Initial Technical Proposal Evaluation for OAO, defendant included three weaknesses in plaintiffs Adequacy of Technical Proposal, a subcategory of Written Technical" }, { "docid": "21078403", "title": "", "text": "Security 56.00 56 MVM 54.50 55 DynBorg 58.00 53 UIIS 58.75 53 First Security 49.75 47 II. Technical Revisions Submitted in Fourth BAFO FAR § 15.601 defines “discussion” as “any oral or written communication between the Government and an offeror ... that (a) involves information essential for determining the acceptability of a proposal, or (b) provides the offeror an opportunity to revise or modify its proposal.” FAR § 15.610(c) provides that “[t]he contracting officer shall ... (5)[p]rovide the offeror an opportunity to submit any cost or price, technical, or other revisions to its proposal that may result from the discussions____” Plaintiff argues that defendant’s failure to evaluate plaintiff’s technical revisions in its fourth BAFO violated FAR § 15.610(c)(5), prejudiced plaintiff, and breached its implied duty of good faith and fair dealing. However, the solicitation here stated that defendant “reserve[d] the right to award on the basis of the initial proposal without any discussions.” AR 2654 (emphasis added.). And the FAR requires discussion and review only if the government has asked a bidder “to revise or modify its proposal.” See FAR § 15.601(b). The government here did not ask for a revision to the technical proposal. Moreover, plaintiff’s technical revisions, though purporting to respond to the agency’s October 9,1997 memorandum (and specifically addressing concerns raised in that memo), were unsolicited because the agency’s October 17, 1997 memo to all offerors (which plaintiff received before preparing its response to the fourth BAFO) stated that the October 9 memo was intended to be merely informational. Finally, defendant formally closed discussions by a letter dated October 20. Plaintiff also concedes that it received this notice prior to submitting its fourth BAFO response containing the technical revisions. Transcript of Evidentiary Hearing and Oral Argument held May 26, 1998 (Tr.) at 145. Plaintiff’s contention at oral argument that defendant’s October 9 letter, by inviting the offerors to “review [their] price and/or technical proposals] for areas that are not in the best interest of [the] program,” opened technical discussions regarding the issues discussed in the letter (staffing and strike contingency plan), see Tr. at 8-9, must be" }, { "docid": "15839015", "title": "", "text": "where an agency has a central concern which affects multiple portions of an offeror’s proposal and which, if unaddressed, will effectively eliminate that offeror from competition, fairness and equity dictate that such concern be brought to the offeror’s attention.” (citation omitted))). b. The Government’s Response. The Government disputes that Plaintiffs proposal was evaluated improperly. See Gov’t Mot. at 7. First, the Government responds that the fact that Plaintiffs Technical Approach had no weaknesses does not entitle Plaintiff to the highest rating. Id. at 7 (citing Pflow Industries, Inc., Comp. Gen. B-289970, May 20, 2002, 2002 CPD ¶85, 2002 WL 1015333 at *1 (protest challenging technical evaluation of proposals was denied where agency reasonably found awardee’s proposal was entitled to higher ratings than protester’s based on level of detail found in the proposals)). In addition, the Government insists that there is no support for Plaintiffs assertion that Lockheed Martin’s competing proposal was indistinguishable from Plaintiffs. See Gov’t Mot. at 9 (citing AR 466 (“Lockheed Martin’s 21st Century (LM21) Process illustrates continuous process improvement which will enhance the performance of the requirements by reducing program costs and delivering maximum efficiency.”)); see also 8/7/07 TR at 84-86. The Government also argues that even if Plaintiffs Technical Approach and Past Performance were rated incorrectly, Plaintiff cannot show prejudice. Lockheed Martin would have been awarded the Task Order, because Lockheed Martin’s proposed price was lower. See Gov’t Mot. at 9. Finally, the Government contends that the CO’s decision to downgrade Plaintiffs proposal, without any discussion, was not in error, because the RFQ advised offerors that there would be no such discussions. See Gov’t Mot. at 11 (citing AR 2 (“The Government intends to award a task order without discussions. Offerors should provide them best, complete proposal upon initial submission. The Government reserves the right to hold discussions if deemed necessary by the Contracting Officer.”)); see also 8/7/07 TR at 87. c. The Court’s Resolution. The court has determined that despite apparent errors in Plaintiffs Technical Approach and Past Performance ratings, Plaintiff cannot demonstrate prejudice with respect to the CO’s overall rating of Plaintiffs proposal. See" }, { "docid": "2580462", "title": "", "text": "or that the offers for those products are insufficient to fulfill the requirements of this solicitation.” AR at 161. . Both the letter itself and the deadline were erroneously dated \"2009.” . Staples was asked to clarify ambiguous information concerning the TAA compliance of certain core items. As intervenor-defendant points out, these clarifications did not address Staples' mission capability weaknesses. Staples’ Mot. at 30. When plaintiff suggests that Office Depot should have been given an opportunity to correct weaknesses in its proposal, Pl.’s Mot. at 24, plaintiff requests an opportunity not provided Staples. . Plaintiff argues that if discussions were held with Staples, Office Depot was entitled to discussions, too. See Pl.'s Reply at 21 (\"Once having conducted discussions with Staples, the FDIC was required to hold discussions with all offer-ors.”) (citations omitted). The FDIC manual states that \"[Hollowing the initial evaluation of the proposal[s], if there is no one successful offeror ... discussions must be held with each offeror in the competitive range.” AR at 2000. The FDIC’s Associate Director of the Acquisitions Services Branch reviewed this procurement and found that \"evaluation resulted in a sufficient number of highly rated proposals” to permit award, and, thus, \"discussions with offerors regarding the merits of their technical proposals were not deemed necessary.” AR at 262. The court defers to the FDIC’s permissible interpretation of its procurement procedures, and concludes that the conditions requiring discussions to be held with all offerors in a competitive range were not met here. . According to plaintiff, these numbers have been adjusted to reflect only those TAA non-compliant items that could not be waived by the contracting officer. PL's Reply at 22 n. 29." }, { "docid": "19040488", "title": "", "text": "However, the FAR states that “the contracting officer is not required to discuss every area where the proposal could be improved” and that instead “[t]he scope and extent of discussions are a matter of contracting officer judgment.” FAR 15.306(d)(3). Under this provision, “‘[t]he government need not discuss every aspect of the proposal that receives less than the maximum score or identify relative weaknesses in a proposal that is technically acceptable but presents a less desirable approach than others.’ ” Cube Corp. v. United States, 46 Fed.Cl. 368, 384 (2000) (quoting ACRA, Inc. v. United States, 44 Fed.Cl. 288, 295 (1999)). As the Court has recognized, “unless an offeror’s costs constitute a significant weakness or deficiency in its proposal, the contracting officer is not required to address in discussions costs that appear to be higher than those proposed by other offerors.” DMS All-Star Joint Venture v. United States, 90 Fed.Cl. 653, 669 (2010) (citing SOS Interpreting, Ltd., B-287477.2, 2001 CPD ¶ 84 (May 16, 2001)). In the SSEB’s view, Ceres’ pricing was not a deficiency or a weakness — it was not so high or out of line with other offerors’ pricing as to require discussions. Nor did Ms. Guillot suggest that Ceres be eliminated from the competitive range based on its pricing. As such, Ceres’ proposed pricing, while higher than other offerors, did not require amplification or correction. Under the rubric of unfair discussions Plaintiff also argues that the agency provided AshBritt and P & J access to Ceres’ successful pricing in Region 6b in a debriefing, but failed to mitigate the competitive advantage held by AshBritt and P & J by providing Ceres with reciprocal access to AshBritt and P & J’s prices. Plaintiff apparently contends that the agency should have disclosed its competitors’ pricing during discussions to mitigate this unfairness. However, Plaintiff knew, prior to submission of its proposal in the reeompetition, that other offerors had obtained its pricing for the regions in which it was the awardee at the debriefing. Similarly, Plaintiff gained access to the successful pricing of awardees in other regions including Regions 5 and" }, { "docid": "6583359", "title": "", "text": "no contracts in category TRP 93-003 without providing what plaintiff perceived to be a reasonable, articulated explanation. However, the issue is not whether a particular agency or officer had too much discretion, as plaintiff seems to suggest, but whether given the amount of discretion that the solicitation afforded the procurement officials, it can be shown that an agency’s or official’s actions were so unreasonable as to constitute an abuse of discretion. The greater the discretion afforded a contracting official, the higher the standard of proof required to demonstrate arbitrariness or caprieiousness. Plaintiff failed to specify and adequately discuss a specific action on the part of defendant. Conelusory statements that the defendant’s discretion was “too broad” and that it chose non-experts as evaluators fail to persuade this court that arbitrary or capricious decision-making occurred during the procurement process. The fourth criterion allows plaintiff to recover bid preparation costs if it successfully proves there was a clear and prejudicial violation of a statute or regulation in the government’s rejection of a proposal. Keco II, 203 Ct.Cl. at 574; Aviation Enter., Inc. v. United States, 8 Cl.Ct. 1, 19-20 (1985). A violation does not per se provide a basis for recovering costs; the violation must effectively deny the bidder the “impartial consideration to which it was entitled under the implied contract obligations of the government.” Arrowhead Metals, Ltd. v. United States, 8 Cl.Ct. 703, 714 (1985) (citation omitted). Plaintiff infers that defendant violated the Federal Acquisition Regulations by failing to follow government contracting procedures as defined in 48 C.F.R. § 15.609-15.610. This court finds no such violations. Section 15.610(b) states “the contracting officer shall conduct written or oral discussion with all responsible offerors who submit proposals within the competitive range.” But as plaintiff notes to his detriment, no such obligation is imposed if the solicitation indicates that an award may be made without discussion. 48 C.F.R. 15.610(a)(3)(i). The TRP SBIR solicitation states that its technical reviewers would base conclusions only on information contained in the proposal. Section 15.609(a) states in part that “the competitive range____ shall be determined on the basis of cost" }, { "docid": "5356810", "title": "", "text": "range. Further, the court cannot, as plaintiff requests, direct the Army to place plaintiff in the competitive range because the court is not empowered to evaluate proposals in the first instance. . Plaintiff contends that it was excluded from the competitive range, and cites several decisions in support of the proposition that it is improper to exclude an offeror from the competitive rangé without first evaluating its proposed cost/price. See, e.g., Info. Scis. Corp. v. United States, 73 Fed.Cl. 70, 115 (2006) (\"Although the Govern^ ment is correct in pointing out the breadth of discretion that a contracting officer is afforded in determining the competitive range, the [contracting officer] does not have discretion to ignore an evaluation factor that is set forth in the Solicitation when making the competitive range determination.” (footnote omitted)); Meridian Mgmt. Corp., B-285127, 2000 CPD ¶ 121 (Comp.Gen. July 19, 2000) (\"Cost or price to the government must be included in every RFP as an evaluation factor, and agencies must consider cost or price to the government in evaluating competitive proposals. This requirement means that an agency may not exclude a technically acceptable proposal from the competitive range without taking into account the relative cost of that proposal to the government.” (citations omitted)). The Army, however, never evaluated plaintiff's proposal on its merits. Rather, it determined that the proposal did not comply with requirements set forth in the solicitation and therefore could not be evaluated. Thus, the proposition advocated by plaintiff is inapplicable to its situation. . In its response in opposition to defendant's motion for judgment on the administrative record, plaintiff suggests, without any support, that the Army, the Army’s employees, and the United States Department of Justice have engaged in a conspiracy to prevent the award of a contract to plaintiff in the procurement at issue. See, e.g., PL's Resp. 8 (\"This action, by the same agency, the same group of procurement officers and same agency counsel, strongly suggests retaliation for filing this bid protest.”), 9 (\"Defendant ... opens the door for exploring the prospect of retaliation.... Plaintiff has retained other counsel to pursue" }, { "docid": "22571067", "title": "", "text": "be arbitrary and capricious. If it is assumed the corrections were informalities or minor irregularities, then the failure to conduct discussions with all other competing offerors as called for by 41 C.F.R. § 1-3.805-1 is significantly lessened, insofar as whether the failure was arbitrary and capricious. In fact the Defense Acquisition Regulations in dealing with military procurement specifically permit the correction of minor mistakes and errors in a proposal, at the request of an offeror, and provide that such correction will not constitute a discussion with regard to the requirement of conducting discussions with all other offerors. Therefore, we conclude that the contracting officer’s decision to accept the technical changes submitted by Honeywell and yet not reopen discussions with plaintiff was entirely reasonable and not arbitrary and capricious. To summarize: (1) the contracting officer’s acceptance of Honeywell’s price modification proceeded not from bad faith, but out of a regard for the policy of maintaining maximum competition in contract awards; (2) bad faith was never even alleged, much less proved. Moreover, (3) since the requirement of price submissions in negotiated procurements is designed to save the Government money, not for the benefit of competing offerors, plaintiffs assertion of a protectable interest in the enforcement of the price requirement has little support. As for plaintiffs complaint concerning the changes Honeywell made in its technical proposal, (4) it would have been reasonable for the contracting officer to treat such changes as the correction of minor irregularities, in view of the proposal’s earlier acceptance by the technical evaluation and benchmark committees. Furthermore, these changes had already been benchmark tested and accepted prior to proposal submission on December 31, 1975. (5) If the Government was in any way negligent, Keco II holds that mere negligence on the part of the Government does not entitle a \"bidder” to preparation costs. Finally, when we add to these factors (6) the discretion given to Government officials in negotiated procurement, (7) the uncertainty that plaintiff would have won the contract regardless of the derelictions alleged, (8) the fact plaintiff complains of errors in the evaluation of a competitor’s proposal," }, { "docid": "8896548", "title": "", "text": "v. United States, 870 F.2d 644, 649 (Fed.Cir. 1989); see also Bellevue Bus Serv., Inc. v. United States, 15 Cl.Ct. 131, 134 n. 3 (1988). 2. Discussions In the present case, plaintiff also argues that the discussions defendant held with plaintiff were inadequate. According to plaintiff, defendant was obligated to discuss with plaintiff its concern that plaintiffs proposal could not meet the performance requirements of the solicitation. Defendant and WDS contend that adequate and reasonable discussions were held between plaintiff and defendant. In negotiated procurements, such as the procurement at issue here, the CO is required to conduct written or oral discussions with all responsible offerors who submit proposals within the competitive range. 48 C.F.R. § 15.610(b) (1996). “The content and extent of the discussions is a matter of the contracting officer’s judgment, based upon the particular facts of each acquisition.... ” Id.; see also CACI, 13 Cl.Ct. at 731; Action Mfg. Co. v. United States, 10 Cl.Ct. 474, 479 (1986) (“[T]he contracting officer has broad discretion when dealing with negotiations between the government and offerors.”). In addition, 48 C.F.R. § 15.610(c) (1996), provides: The contracting officer shall- (1) Control all discussions; (2) Advise the offeror of deficiencies in its proposal so that the offeror is given an opportunity to satisfy the Government’s requirements; (3) Attempt to resolve any uncertainties concerning the technical proposal and other terms and conditions of the proposal; (4) Resolve any suspected mistakes by calling them to the offeror’s attention as specifically as possible without disclosing information concerning other offerors’ proposals or the evaluation process...; (5) Provide the offeror an opportunity to submit any cost or price, technical, or other revisions to its proposal that may result from the discussions; and (6) Provide an offeror the opportunity to discuss past performance information obtained from references on which the offer- or had not had a previous opportunity to comment. Names of individuals providing reference information about an offeror’s past performance shall not be disclosed. As previously noted, defendant’s contention that plaintiffs proposal required multiple servers in order to meet the performance requirements of the solicitation was reasonable." }, { "docid": "22564109", "title": "", "text": "130. See also 48 C.F.R. § 15.306(d)(2). In this regard, section 15.306(d)(3) of the FAR provides: The contracting officer shall ... indicate to, or discuss with, each offeror still being considered for an award, significant weaknesses, deficiencies, and other aspects of its proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. 48 C.F.R. § 15.306(d)(3). Case law requires' that discussions with offerors whose proposals are found to be in the competitive range be “meaningful” and has held that this requirement is not met if an offeror is not advised, in some way, of defects in its proposal that do not meet the requirements of the solicitation. See Dynacs Eng’g Co., 48 Fed.Cl. at 131; Biospherics, Inc. v. United States, 48 Fed.Cl. 1, 9 (2000); Advanced Data Concepts, 43 Fed.Cl. at 422; Huff & Huff Serv. Corp., B-235419, 89-2 CPD ¶ 55, at 3-4, 1989 WL 240941 (Comp.Gen.1989). Where an award has been made to an offeror whose proposal proved unacceptable, the GAO has frequently sanctioned further discussions between the agency and the offeror if the offer was reasonably susceptible of being cured. Thus, for example, in D & M Gen. Contracting, Inc., supra, several offerors failed to meet requirements in the solicitation regarding their management submissions. In response, the agency proposed corrective action under which it would reopen discussions and advise the offerors to disregard the solicitation’s requirements in submitting revised best and final offers. A contractor whose proposal had conformed with the solicitation protested, asserting that the agency, instead, was required to disqualify the offerors whose proposals were nonconforming. In rejecting this protest and upholding the proposed action, the GAO stated that “[wjhere, as here, award was made to an offeror whose proposal did not comply with RFP requirements, an agency is not required to eliminate the awardee from the competition, but may permit it to correct its proposal.” 1993 WL 325094 at *2. The GAO determined that the proposed corrective action “resolves any" }, { "docid": "19366931", "title": "", "text": "Despite the TET’s apprehensions on whether Coastal Maritime’s response satisfactorily addressed Technical Sub-factor lc, the TET nonetheless kept the company within the competitive range and permitted Coastal Maritime to submit final proposal revisions. AR 915. Thus, Coastal Maritime was unaware that, after discussions, its final proposal still was defective with respect to Technical Sub-factor lc. As previously noted, FAR 15.306(d) requires contracting officers to at least discuss with an offeror deficiencies or significant weaknesses in its proposal. FAR 15.306(d) further encourages contracting officers to discuss with an offeror aspects of its proposal that could be “explained to enhance materially the proposal’s potential for award.” 48 C.F.R. § 15.306(d)(3). If, after such discussions, an offeror’s proposal still is unsatisfactory, FAR 15.306(c)(3) requires contracting officers to remove the proposal from the competitive range and formally eliminate the offeror from consideration for award. 48 C.F.R. § 15.306(c)(3). As Defendant aptly notes, by failing to engage in meaningful discussions with Coastal Maritime regarding the capability of its equipment, the Army essentially invited Coastal Maritime to submit a final proposal that stood no chance for award. See Def.’s Mot. 19. Despite its concerns on whether Coastal Maritime’s response was “sufficient to meet the technical evaluation standard,” AR 912, the Army neither engaged in further discussions with Coastal Maritime, nor eliminated it from the competitive range for its deficiency. The Army thus properly exercised its discretion to take corrective action and remedy the impropriety in the procurement process. Ceres Gulf makes much of the fact that the Evaluation Team Lead, in his February 1, 2010 memorandum, emphasized that the Government “clearly described the deficiency [in Coastal Maritime’s initial proposal] and gave Coastal the opportunity to correct it.” AR 886.1; see also Pl.’s Mot. 7; Pl.’s Reply 2-3. The agency may have originally believed that Coastal Maritime had been adequately apprised of its deficiency in responding to Technical Sub-factor lc. However, that belief does not render the contracting officer’s later decision to take corrective action unreasonable or unlawful. Where a contracting officer’s determination to take corrective action is reasonable under the circumstances, it will not be overturned." }, { "docid": "2580431", "title": "", "text": "The primary objective of discussions is to maximize the ability of FDIC to obtain best value, based on the requirement and the evaluation factors set forth in the solicitation. Before holding discussions, the Contracting Officer normally meets with members of the TEP to review the findings. During this meeting, the Contracting Officer must determine what information to provide to, and request from, offerors in the competitive range concerning their proposals. With the assistance and participation of the TEP, the Contracting Officer conducts the discussions, face-to-face, telephonically, or in writing, and may include technical, price, or other issues. The Contracting Officer must control the discussions to ensure they are conducted fairly. Discussions are not a general question-and-answer period for each offeror; rather, the Contracting Officer must ask specific questions to clarify uncertainties in the proposal. During discussions, the Contracting Officer must: (1) Advise the offeror of deficiencies in its proposal based upon the TEP’s evaluations; (2) Attempt to resolve any uncertainties concerning the offeror’s proposal; (3) Identify and resolve suspected mistakes by calling them to the offeror’s attention without disclosing information on other offerors’ proposals or the evaluation process; (4) As appropriate, inform an offeror that FDIC considers its price to be too high, or too low; and, (5) Discuss adverse past performance information to which the offeror has not previously had an opportunity to comment. During discussions the Contracting Officer must ensure that FDIC personnel do not: (1) Help an offeror bring up a proposal to the level of other proposals through successive discussion opportunities (see Limits on Communications at PGI 3.211(c) below); (2) Indicate to an offeror that a price must be met to obtain further consideration; or (3) Furnish information about other offer-ors’ proposed prices. After discussions are completed, offerors are given the opportunity to revise or clarify their proposals through submission of a best and final offer (BAFO). AR at 2000-01. With these definitions in mind, the court turns to the communications between Staples and the FDIC, to determine whether the FDIC’s procurement procedures were violated in each instance. B. Communications between the FDIC and Staples As" }, { "docid": "22564108", "title": "", "text": "282110 (Comp.Gen.1997); Martin Marietta Corp., B-233742.4, 90-1 CPD ¶ 132, at 7, 1990 WL 269506 (Comp.Gen. 1990). But, contrary to ManTech’s claim, such a defect does not warrant Lockheed Martin’s total exclusion from the bidding, but instead may be remedied by steps designed to assist Lockheed Martin in bringing its cost proposal into conformity with the Army’s requirements. In this regard, it is helpful to consider the Army’s conduct not just from Man-Tech’s perspective, but also from Lockheed Martin’s vantage. Under the FAR, if Lockheed Martin’s cost proposal did not conform to the Army’s interpretation of the Solicitation, the Army was required to conduct further discussions with Lockheed Martin to allow it to correct its proposal. Agencies are generally required to conduct discussions with all responsible offerors who submit proposals within the competitive range. 48 C.F.R. § 15.306(d). Such discussions “are intended to maximize the government’s ability to obtain the ‘best value’ in a contract award based on the requirements and the evaluation factors set forth in the solicitation.” Dynacs Eng’g Co., 48 Fed.Cl. at 130. See also 48 C.F.R. § 15.306(d)(2). In this regard, section 15.306(d)(3) of the FAR provides: The contracting officer shall ... indicate to, or discuss with, each offeror still being considered for an award, significant weaknesses, deficiencies, and other aspects of its proposal (such as cost, price, technical approach, past performance, and terms and conditions) that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. 48 C.F.R. § 15.306(d)(3). Case law requires' that discussions with offerors whose proposals are found to be in the competitive range be “meaningful” and has held that this requirement is not met if an offeror is not advised, in some way, of defects in its proposal that do not meet the requirements of the solicitation. See Dynacs Eng’g Co., 48 Fed.Cl. at 131; Biospherics, Inc. v. United States, 48 Fed.Cl. 1, 9 (2000); Advanced Data Concepts, 43 Fed.Cl. at 422; Huff & Huff Serv. Corp., B-235419, 89-2 CPD ¶ 55, at 3-4, 1989 WL 240941 (Comp.Gen.1989). Where an award" }, { "docid": "7165117", "title": "", "text": "neither D & B’s nor the contracting officer’s conclusion that Ryder presented a “moderate” financial risk was irrational. C. The Contracting Officer Did Not Err in Failing to Conduct Additional Discussions with Ryder Regarding Its Financial Condition Under the F.A.R., the contracting officer is obligated to conduct discussions with offerors in the face of potentially deficient or ambiguous information contained in that offeror’s bid. Furuno U.S.A., Inc., B-221814, Apr. 24, 1986, 86-1 CPD 11400, at 5, 1986 WL 63429 (“[0]ne purpose of discussions is to advise offerors within the competitive range of informational deficiencies in their proposals so that they can be given an opportunity to satisfy the government’s requirements.”); CACI Field Services, Inc. v. United States, 13 Cl.Ct. 718, 731 (1987). More specifically, the F.A.R. provides that: [T]he contracting officer shall ... indicate to, or discuss with, each offeror still being considered for award, significant weaknesses, deficiencies, and other aspects of its proposal ... that could, in the opinion of the contracting officer, be altered or explained to enhance materially the proposal’s potential for award. The scope and extent of discussions are a matter of contracting officer judgment. 48 C.F.R. § 15.306(d)(3) (1994 & Supp.1999). In accordance with the discretion provided under the F.A.R., “[a]gencies need not discuss every aspect of the proposal that receives less than the maximum score or identify relative weaknesses in a proposal that is technically acceptable but presents a less desirable approach than others.” Biospherics, Inc. v. United States, 48 Fed.Cl. 1, 8 (2000) (citing Development Alternatives, Inc., Comp. Gen. B-279920, Aug. 6, 1998, 98-2 CPD ¶ 54, at 7, 1998 WL 546017). Because Ryder does not object to the actual data but instead challenges DoD’s interpretation of the data, this case illustrates exactly the type of situation in which additional discussions are not required under the F.A.R. It is well settled that discussions are not required regarding opinions drawn from data. Sensis Corp., Comp. Gen. B-265790.2, Jan. 17, 1996, 96-1 CPD ¶ 77, at 8, 1996 WL 15744 (“[A]n agency generally need not discuss matters with offerors which, by their nature, generally are" }, { "docid": "22571066", "title": "", "text": "part of the Government does not entitle a \"bidder” to preparation costs. The committee approvals had been issued when the; contracting officer was told by Miss Hughes that three components were missing from Honeywell’s proposal. The contracting officer called Honeywell, was assured the omissions were minor, and accepted corrected pages of the Honeywell proposal which reincorporated the three missing components. No variation at all from the RFP’s actual requirements was contemplated by the technical corrections Honeywell submitted. Nor was there any change in Honeywell’s overall price by addition of the three compo nents, because the price differential was covered by Honeywell’s earlier submission of its price change. Since the technical evaluation and benchmark committees had determined Honeywell’s proposal was technically responsive and the corrections Honeywell submitted involved (at that time) no change in price, the contracting officer had no reason to suspect the technical changes Honeywell made were anything other than \"informalities and minor irregularities” the correction of which he could permit under section 1.9 (b) of the RFP. Certainly such a conclusion would not be arbitrary and capricious. If it is assumed the corrections were informalities or minor irregularities, then the failure to conduct discussions with all other competing offerors as called for by 41 C.F.R. § 1-3.805-1 is significantly lessened, insofar as whether the failure was arbitrary and capricious. In fact the Defense Acquisition Regulations in dealing with military procurement specifically permit the correction of minor mistakes and errors in a proposal, at the request of an offeror, and provide that such correction will not constitute a discussion with regard to the requirement of conducting discussions with all other offerors. Therefore, we conclude that the contracting officer’s decision to accept the technical changes submitted by Honeywell and yet not reopen discussions with plaintiff was entirely reasonable and not arbitrary and capricious. To summarize: (1) the contracting officer’s acceptance of Honeywell’s price modification proceeded not from bad faith, but out of a regard for the policy of maintaining maximum competition in contract awards; (2) bad faith was never even alleged, much less proved. Moreover, (3) since the requirement of" }, { "docid": "22564122", "title": "", "text": "an opportunity to improve its technical proposal. But, it also affords ManTech an opportunity to improve not only its technical proposal, but also its cost proposal. Among other things, this situation offers ManTech a chance to flush out the [ ] offer ([ ] less than its formal offer) that it made informally during the prior selection process. Moreover, as will be discussed in greater detail below, ManTech has the opportunity to amend its cost proposal knowing that the price it initially proposed was significantly higher than that of Lockheed Martin. In these circumstances, this court concludes that the Army’s proposal to amend the solicitation here is not arbitrary, capricious or otherwise contrary to law. b. Conducting Further Discussions on the Technical Proposals If, as this court has concluded, it is appropriate for the Army to amend the Solicitation, then it follows, under the FAR, that the Army may conduct further discussions with the competitors regarding areas of concern, including issues involving the fully loaded labor costs and key personnel. As noted above, agencies generally are required to conduct “meaningful” discussions with all responsible offerors which submit proposals within the competitive range. See 48 C.F.R. § 15.306(d). Moreover, the FAR further emphasizes that “[t]he scope and extent of discussions are matters of contracting officer judgment.” 48 C.F.R. § 15.306(d)(3). Nothing in the FAR suggests that these provisions are any less applicable following an amendment to a solicitation. Plaintiff, however, argues that further discussions regarding the technical proposals are unwarranted because the Army already supplied Lockheed Martin with an opportunity to correct any material weaknesses in its technical proposal. But, the current version of the FAR provides otherwise. Solicitations issued after January 1, 1998, such as the one here, are governed by the FAR, as amended by the Federal Acquisition Circular (FAC) No. 97-02. The FAR part 15 rewrite, included in this amended version of the regulation, revised substantially the provisions that apply to negotiated procurements, including those provisions governing exchanges with offerors after the receipt of proposals, as set forth in 48 C.F.R. § 15.306. The prior version of the" }, { "docid": "6583360", "title": "", "text": "574; Aviation Enter., Inc. v. United States, 8 Cl.Ct. 1, 19-20 (1985). A violation does not per se provide a basis for recovering costs; the violation must effectively deny the bidder the “impartial consideration to which it was entitled under the implied contract obligations of the government.” Arrowhead Metals, Ltd. v. United States, 8 Cl.Ct. 703, 714 (1985) (citation omitted). Plaintiff infers that defendant violated the Federal Acquisition Regulations by failing to follow government contracting procedures as defined in 48 C.F.R. § 15.609-15.610. This court finds no such violations. Section 15.610(b) states “the contracting officer shall conduct written or oral discussion with all responsible offerors who submit proposals within the competitive range.” But as plaintiff notes to his detriment, no such obligation is imposed if the solicitation indicates that an award may be made without discussion. 48 C.F.R. 15.610(a)(3)(i). The TRP SBIR solicitation states that its technical reviewers would base conclusions only on information contained in the proposal. Section 15.609(a) states in part that “the competitive range____ shall be determined on the basis of cost or price and other factors that were stated in the solicitation ...” 48 C.F.R. § 15.609(a). Plaintiffs argument that this section was violated fails for two reasons. First, the solicitation clearly indicated that cost would be considered in light of the technical merit of each proposal, stating “where technical evaluations are essentially equal in merit, cost to the government will be considered in determining the successful offeror.” Thus, if an evaluator had determined that a proposal’s technical merit was comparatively weak, there would be, logically, no extensive cost analysis. Second, the evaluation sheets represent only a portion of the overall consideration plaintiffs proposal received, and. this court is not in a position to speculate on the criteria defendant used at the different levels of its decision-making process. The court finds that defendant committed no statutory or regulatory violations in its rejection of plaintiffs proposal. Plaintiff therefore was not denied impartial consideration. IV. Injunctive Relief ' Plaintiff sought to enjoin defendant from awarding any contract until plaintiffs proposal is re-evaluated by a different group of experts," } ]

[ { "docid": "22987841", "title": "", "text": "the danger, illustrated in Clark v. C. I. R., 266 F.2d 698 (9th Cir. 1959), of misleading courts into believing that if the taxpayer introduced evidence from which it “could” be found that the assessment was erroneous, the burden of proof was placed on the Commissioner. We unambiguously stated that whether or not reference was made to a presumption, it must be made clear that “the taxpayer never loses the burden of proving the Commissioner’s determination erroneous.” 316 F.2d at 704; see also n. 4, “Presumption or no, the burden of proof never shifts.” The district court in finding that the burden can shift to the Commissioner relied on Foster, supra, a subsequent Fourth Circuit deficiency case, which said that the initial burden on the taxpayer is merely procedural, requiring only evidence from which it could be found that the deficiency was wrong, and that once met, the burden was on the Commissioner to prove the existence and amount of the deficiency. That decision rested explicitly on such earlier cases as Stout and Clark, supra, which we had equally explicitly considered and rejected in United Aniline. We have been presented with no reasons why we should reconsider our rejection of Stout, Clark and their progeny, and our holding in United Aniline. Therefore, insofar as Foster may be deemed inconsistent with the rule enunciated in United Aniline and followed in the other circuits, we reject Foster and reaffirm our holding in United, Aniline that in a deficiency or refund suit, the burdens of going forward and of ultimate persuasion are always on the taxpayer and never shift to the Commissioner. Taxpayer does not challenge the holding of United Aniline but rather suggests that the rule may be different, as the district court’s opinion indicated, when, as here, the government sues to collect taxes. This proposal, that the burden of proof shifts when the government is the moving party, either in a collection suit or on a counterclaim to a taxpayer refund suit, has been rejected by other circuits, Lease, Lesser, Psaty, Bar L, Liddon, Thrash, Plisco, supra, and for sound reasons." } ]

[ { "docid": "21601493", "title": "", "text": "I. We disagree with the district court’s judgment. Its conclusions pertaining to both the assessment and the attorney’s fees are incorrect. The question in this case concerns the effect of the government’s concession on its assessment of the defendants’ tax liability. In this circuit, as in others, “[i]t is axiomatic that ... the Commissioner’s tax deficiency determinations are to be presumed correct.” Barnes v. Commissioner, 408 F.2d 65, 68 (7th Cir.), cert. denied, 396 U.S. 836, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969). This presumption, however, is rebuttable. It can be overcome. In a § 6672 case, the taxpayer bears both the burden of production and the burden of persuasion in showing that the presumption is unwarranted. Ruth v. United States, 823 F.2d 1091, 1093 (7th Cir.1987). To make such a showing the taxpayer must persuade the fact-finder that the government’s assessment is wrong, and wrong by some amount. Id. In this case it is beyond dispute that the 1980 assessment of $131,248.94 was off by an amount of $6348.19, that it should have been for $124,900.75. The government conceded as much, the evidence proved it out, and the lower court so found. Thus, it is clear that the government’s assessment was wrong, and wrong by $6348.19. This does not mean, however, that the defendants owe nothing. Proof that an assessment is incorrect does away with the government’s presumption, it is true, but it does not wipe out the taxpayer’s liability. See Rogers v. Commissioner, 248 F.2d 452 (7th Cir.1957) (concerning unreported income). That liability is merely adjusted to coincide with the proof. Id. See also United States v. Rindskopf, 105 U.S. 418, 422, 26 L.Ed. 1131 (1881). When a court is faced with an incorrect but otherwise valid assessment the proper course is not to void the assessment, as did the district court, but to determine what, if anything, the taxpayer owes the government. See Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935). This course should be followed whenever a taxpayer’s liability is capable of being determined by some approved method of calculation, even" }, { "docid": "12313309", "title": "", "text": "Co., Inc. v. United States, 132 F.R.D. 414, 421 (M.D.N.C.1990). The government has shown an entitlement to the presumption of regularity by proffering the Conrad declaration, which describes the IRS’s general procedure concerning issuance of notices of deficiency and assessments, as well as notices of deficiency for all but three of the tax years in question, and certificates of assessment for those three years. The Boyces, by contrast, have adduced no evidence—not even a sworn declaration—controverting the fact that notices of deficiency were mailed to Joel for tax years 2003-2005. Accordingly, the court deems it uncontroverted that the IRS sent Joel notices of deficiency for each tax year in question at his last known address. c. Whether Valid Tax Assessments Were Made “In an action to collect taxes, the government bears the initial burden of proof.” Palmer v. U.S. I.R.S., 116 F.3d 1309, 1312 (9th Cir.1997). “The government can usually carry its initial burden, however, merely by introducing its assessment of tax due.” United States v. Stonehill, 702 F.2d 1288, 1293 (9th Cir.1983); see also Palmer, 116 F.3d at 1312 (“The Commissioner’s deficiency determinations and assessments for unpaid taxes are normally entitled to a presumption of correctness so long as they are supported by a minimal factual foundation”). The presumption of correctness shifts the burden of proof to the taxpayer to show that the determination is incorrect. See Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir. 1985); Stonehill, 702 F.2d at 1293 (“Normally, a presumption of correctness attaches to the assessment, and its introduction establishes a prima facie case”). Although the government cannot rely on the presumption of correctness until it offers “some substantive evidence showing that the taxpayer received income” on which taxes were not paid, Weimerskirch v. Commissioner, 596 F.2d 358, 360 (9th Cir.1979); see also Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982) (per curiam) (holding that a factual foundation for the assessment is laid “once some substantive evidence is introduced demonstrating that the taxpayer received unreported income”), this burden “can be met by presenting federal tax assessments____ Certificates of Assessments and Payments (‘Form 4340s’)" }, { "docid": "22706915", "title": "", "text": "the exclusionary rule to a civil proceeding involve “intrasovereign” violations, a situation we need not consider here. In some cases the courts have refused to create an exclusionary rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions. See United States ex rel. Sperling v. Fitzpatrick, 426 F. 2d 1161 (CA2 1970) (intrasovereign/parole revocation); United States v. Schipani, 435 F. 2d 26 (CA2 1970), cert. denied, 401 U. S. 983 (1971) (intersovereign/sentenc-ing). And in Compton v. United States, 334 F. 2d 212, 215-216 (1964), a case remarkably like this one, the Fourth Circuit held that the presumption of correctness given a tax assessment was not affected by the fact that the assessment was based upon evidence unconstitutionally seized by state criminal law enforcement officers. Only one case cited by the respondent squarely holds that there must be an exclusionary rule barring use in a civil proceeding by one sovereign of material seized in violation of the Fourth Amendment by an officer of another sovereign. In Suarez v. Commissioner, 58 T. C. 792 (1972) (reviewed by the court, with two judges dissenting), the Tax Court determined that the exclusionary rule should be applied in a situation similar to the one that confronts us here. The court concluded that “any competing consideration based upon the need for effective enforcement of civil tax liabilities (compare Elkins v. United States . . .) must give way to the higher goal of protection of the individual and the necessity for preserving confidence in, rather than encouraging contempt for, the processes of Government.” Id., at 805. No appeal was taken. We disagree with the broad implications of this statement of the Tax Court for two reasons. To the extent that the court did not focus on the deterrent purpose of the exclusionary rule, the law has since been clarified. See United States v. Calandra, 414 U. S. 338 (1974); United States v. Peltier, 422 U. S. 531 (1975). Moreover, the court did not distinguish between intersover-eign and intrasovereign uses of unconstitutionally seized material. Working, as we must, with the absence of convincing" }, { "docid": "11049378", "title": "", "text": "of the burden directly to the presumption of correctness. Nonetheless, a significant body of case law describes the extent to which the loss of the presumption of correctness impacts the placement of the burden of proof. There is, for example, a long-standing split in the circuits as to whether rebutting the presumption of correctness causes the burden of proof to shift automatically to the government. For our purposes, however, it is controlling that the Federal Circuit, following the majority rule, has held that after a taxpayer overcomes the presumption, it must still carry the ultimate burden of proof or persuasion. See Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990), aff'g, 16 Cl.Ct. 584, 593-94 (1989). Consistent with the rule in this circuit, if the defendant here establishes that a presumption of correctness attaches to the assessment in question, then, even if the plaintiff overcomes that presumption, the burden of proof will remain on the plaintiff. But, what if the defendant cannot provide a foundation for its assessment, that is, if the assessment remains “naked”? That scenario, which theoretically could arise in the instant case, prompts a question of apparent first impression in this court — to wit, does the burden of proof in a refund suit shift to the defendant if, rather than being overcome by evidence introduced by the taxpayer, the presumption of correctness instead simply never arises, because an assessment is “naked” and utterly without foundation? There are several reasons why it appears that even where a presumption of correctness does not arise, the burden of proof should remain on the taxpayer. First, pure logic suggests that if the burden does not shift when a taxpayer demonstrates that an assessment supported by records is “arbitrary and erroneous,” it also should not shift when an assessment is deemed “arbitrary and erroneous” because it is “naked.” The court cannot conceive why the reason the presumption is discounted as “arbitrary and erroneous” should matter when it comes to the allocation of the burden of proof. Second, the various rationales discussed above for imposing the burden of proof on the" }, { "docid": "11049374", "title": "", "text": "undoubtedly could demonstrate that the assessment in question is not “naked,” but rather has a foundation in fact, and that the presumption of correctness is fully applicable. If, however, the offered evidence proves lacking or inadmissible, then the assessment in question would be “naked” and the presumption would not arise. While it remains to determine whether this would cause the burden of proof to shift to the government — a topic discussed below — at a minimum, it appears that the loss of the presumption would leave the government in great peril if its proof were limited to negating the plaintiffs case without affirmatively supporting the assessment. In sum, the government’s admission that it has lost the entire administrative file here obliges this court to look behind the assessment. Using the procedure described in more detail below, the court will, at trial, review the government’s evidence supporting the assessment, before determining whether the assessment is truly “naked” or, conversely, is entitled to the normal presumption of correctness. B. The Burden of Proof on the Taxpayer’s Complaint Although sometimes referred to as “the opposite sides of a single coin,” Portillo, 932 F.2d at 1133, the presumption of correctness must be distinguished from the taxpayer’s burden of proof in the refimd suit. As a general principle, the taxpayer has the burden of proof in most tax controversies, but the demands of this burden differ depending on the forum in which the suit is filed. In the Tax Court, a taxpayer need only prove that the Commissioner’s deficiency determination is incorrect. See Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 78 L.Ed. 212 (1933). By comparison, in a refund suit, a taxpayer has the burden of proving by a preponderance of the evidence that the assessment or determination is incorrect and the correct amount, if any, of tax. See Helvering v. Taylor, 293 U.S. at 515, 55 S.Ct. 287 (“Unquestionably the burden of proof is on the taxpayer”); Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932), modified, 284 U.S. 599, 52 S.Ct. 264, 76 L.Ed." }, { "docid": "11049381", "title": "", "text": "by State law enforcement officers in violation of the taxpayer’s rights under the Fourth Amendment could be introduced by the Government in a civil tax case. Without such evidence, the assessment would be “naked and without any foundation.” Quoting Helvering v. Taylor, 293 U.S. at 514, 55 S.Ct. 287 the Court stated that the “determination of tax due then may be one ‘without rational foundation and excessive,’ and not properly subject to the usual rule with respect to the burden of proof in tax cases.” Janis, 428 U.S. at 441, 96 S.Ct. 3021. The Court noted the existence of an intercircuit conflict “as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect,” but observed that this “debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case.” Id. at 442, 96 S.Ct. 3021. The language in Janis, which some courts have observed is dicta, is ambiguous and could be viewed as the Supreme Court simply observing what lower courts had concluded without specifically affirming that conclusion. At best, this language is indeterminate on the critical issue before this court, as the Court did not state which aspect of the burden of proof in tax cases, and, particularly, whether the ultimate burden of persuasion, was affected by having a “naked” assessment. Indeed, earlier in its opinion, the Court stated that “for purposes of this case, we assume ... that the burden of proof may be said technically to rest with respondent Janis.” Id. at 441, 96 S.Ct. 3021. Moreover, the language the Court cited in Taylor did not involve a shifting of the burden of persuasion, but rather dealt with whether a taxpayer in a Tax Court suit was obliged to show not only that the Commissioner’s determination was erroneous, but also the correct amount of tax owed. Resolving this question, Taylor held that, unlike in a refund suit, the taxpayer in a Tax Court deficiency action need" }, { "docid": "4103596", "title": "", "text": "Inc. v. Commissioner, 910 F.2d 1374, 1378 (7th Cir.1990); see also Zu-hone v. Commissioner, 883 F.2d 1317, 1325 (7th Cir.1989); Ruth v. United States, 823 F.2d 1091, 1094 (7th Cir.1987); F. & D. Rentals, Inc. v. Commissioner, 365 F.2d 34, 40-41 (7th Cir.1966), certiorari denied, 385 U.S. 1004, 87 S.Ct. 707,17 L.Ed.2d 543. The presumption is not irrebuttable however. As explained in Ruth, “[i]n certain quite limited circumstances ... courts recognize that an assessment should not be accorded even a rebuttable presumption of correctness. For example, when the assessment is shown to be “without rational foundation’ or ‘arbitrary and erroneous,’ the presumption should not be recognized.... As long as the procedures used and the evidence relied upon by the government to determine the assessment had a rational foundation, the inquiry focuses on the merits of the tax liability, not on IRS procedures.” 823 F.2d at 1094 (citations omitted). Thus, to rebut the presumption of correctness and shift the burden to the Commissioner, the taxpayer must demonstrate that the Commissioner’s deficiency assessment lacks a rational foundation or is arbitrary and excessive. Id.; see also Gold Emporium, 910 F.2d at 1378. As discussed below, courts commonly find this showing to be made when the Commissioner makes no evidentiary showing at all but simply rests on the presumption or when the Commissioner’s evidence completely fails to link the taxpayer to alleged unreported income. Finally, it is important to bear in mind that “[t]he arbitrary and excessive doctrine is a challenge to the deficiency assessment itself on the basis that it bears no factual relationship to the taxpayer’s liability, not a challenge to any proof offered by the Commissioner at trial before the Tax Court or district court.” Zuhone, 883 F.2d at 1325. With these standards and principles in mind, we now consider Pittman’s arguments. Pittman’s first contention on appeal is that the Tax Court erred in determining that the payments received by BBL from Heritage in 1986 and 1987 were diverted by him to his personal use. This factual determination by the Tax Court is far from clearly erroneous. To the contrary, the" }, { "docid": "23697634", "title": "", "text": "the taxpayer’s burden of proof and the presumption of correctness are for the most part merely opposite sides of a single coin; they combine to require the taxpayer to prove by a preponderance of the evidence that the Commissioner’s determination was erroneous. Carson v. United States, 560 F.2d 693, 695-96 (5th Cir.1977); see also Janis, 428 U.S. at 440, 96 S.Ct. at 3025; Bar L Ranch, Inc. v. Phinney, 426 F.2d 995, 998 15th Cir.19701. In a Tax Court deficiency proceeding, like this one, once the taxpayer has established that the assessment is arbitrary and erroneous, the burden shifts to the government to prove the correct amount of any taxes owed. In a refund suit, on the other hand, the taxpayer bears the burden of proving both the exeessiveness of the assessment and the correct amount of any refund to which he is entitled. Carson, 560 F.2d at 696; see also Janis, 428 U.S. at 440, 96 S.Ct. at 3025. The presumption of correctness generally prohibits a court from looking behind the Commissioner’s determination even though it may be based on hearsay or other evidence inadmissible at trial. See Clapp v. Commissioner, 875 F.2d 1396, 1402-03 (9th Cir.1989); Zuhone v. Commissioner, 883 F.2d 1317, 1326 (7th Cir.1989); Dellacroce v. Commissioner, 83 T.C. 269, 280 (1984). Justification for the presumption of correctness lies in the government’s strong need to accomplish swift collection of revenues and in the need to encourage taxpayer recordkeeping. Carson, 560 F.2d at 696. The need for tax collection does not serve to excuse the government, however, from providing some factual foundation for its assessments. Id. “The tax collector’s presumption of correctness has a herculean muscularity of Goliathlike reach, but we strike an Achilles’ heel when we find no muscles, no tendons, no ligaments of fact.” Id. In this case we find that the notice of deficiency lacks any “ligaments of fact.” As the Supreme Court has held, the presumption of correctness does not apply when the government’s assessment falls within a narrow but important category of a “ ‘naked’ assessment without any foundation whatsoever_” Janis, 428 U.S." }, { "docid": "22706903", "title": "", "text": "liability, if any, on his part. In the usual situation one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit. But the present case may well not be the usual situation. What we have is a “naked” assessment without any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment. The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 U. S. 507, 514-515 (1935). See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971). There appears, indeed, to be some debate among the Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect. Some courts indicate that the burden of showing the amount of the deficiency then shifts to the Commissioner. Others hold that the burden of showing the correct amount of the tax remains with the taxpayer. However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case. See United States v. Rexach, 482 F. 2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U. S. 1039 (1973); Pizzarello v. United States, 408 F. 2d 579 (CA2), cert. denied, 396 U. S. 986 (1969); Suarez v. Commisioner, 58 T. C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F. 2d 212, 216 (CA4 1964). Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous. For purposes of this case, we need not go so far as to accept the Government’s argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent" }, { "docid": "11049382", "title": "", "text": "is dicta, is ambiguous and could be viewed as the Supreme Court simply observing what lower courts had concluded without specifically affirming that conclusion. At best, this language is indeterminate on the critical issue before this court, as the Court did not state which aspect of the burden of proof in tax cases, and, particularly, whether the ultimate burden of persuasion, was affected by having a “naked” assessment. Indeed, earlier in its opinion, the Court stated that “for purposes of this case, we assume ... that the burden of proof may be said technically to rest with respondent Janis.” Id. at 441, 96 S.Ct. 3021. Moreover, the language the Court cited in Taylor did not involve a shifting of the burden of persuasion, but rather dealt with whether a taxpayer in a Tax Court suit was obliged to show not only that the Commissioner’s determination was erroneous, but also the correct amount of tax owed. Resolving this question, Taylor held that, unlike in a refund suit, the taxpayer in a Tax Court deficiency action need not prove the correct amount of tax owed, stating “[w]e find nothing ... that gives any support to the idea that the commissioner’s determination, shown to be without rational foundation and excessive, will be enforced unless the taxpayer proves he owes nothing or ... shows the correct amount.” 293 U.S. at 514, 55 S.Ct. 287. Thus, the quoted language in Taylor did not involve any aspect of the burden of proof in a refund action. See Moraski, supra at 147. As such, this court is unwilling to read Janis as dictating that in a “naked” assessment case, the burden of proof on the taxpayer’s claim is shifted to the government. It is conceivable that, in some case, the Service’s conduct could be so reprehensible that the integrity of the judicial process would demand that this court take appropriate remedial action. Such action might very well include shifting the burden of proof on the plaintiffs refund claim. But, there has been no showing that such is the case here. Accordingly, this court concludes that even if" }, { "docid": "22706902", "title": "", "text": "the Code, 26 U. S. C. §§ 7401 and 7403. Thus, it is said, the defendant in a collection suit has the same burden of proving that he paid the correct amount of his tax liability. The policy behind the presumption of correctness and the burden of proof, see Bull v. United States, 295 U. S. 247, 259-260 (1935), would appear to be applicable in each situation. It accords, furthermore, with the burden-of-proof rule which prevails in the usual preassessment proceeding in the United States Tax Court. Lucas v. Structural Steel Co., 281 U. S. 264, 271 (1930); Welch v. Helvering, 290 U. S. 111, 115 (1933); Rule 142(a) of the Rules of Practice and Procedure of the United States Tax Court (1973). In any event, for purposes of this case, we assume that this is so and that the burden of proof may be said technically to rest with respondent Janis. Respondent, however, submitted no evidence tending either to demonstrate that the assessment was incorrect or to show the correct amount of wagering tax liability, if any, on his part. In the usual situation one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit. But the present case may well not be the usual situation. What we have is a “naked” assessment without any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment. The determination of tax due then may be one “without rational foundation and excessive,” and not properly subject to the usual rule with respect to the burden of proof in tax cases. Helvering v. Taylor, 293 U. S. 507, 514-515 (1935). See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971). There appears, indeed, to be some debate among the Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect. Some courts indicate that the" }, { "docid": "22706914", "title": "", "text": "in the instant situation is unwarranted. Under either assumption, therefore, the extension of the rule is unjustified. In short, we conclude that exclusion from federal civil proceedings of evidence unlawfully seized by a state criminal enforcement officer has not been shown to have a sufficient likelihood of deterring the conduct of the state police so that it outweighs the societal costs imposed by the exclusion. This Court, therefore, is not justified in so extending the exclusionary rule. Respondent argues, however, that the application of the exclusionary rule to civil proceedings long has been recognized in the federal courts. He cites a number of cases. But respondent does not critically distinguish between those cases in which the officer committing the unconstitutional search or seizure was an agent of the sovereign that sought to use the evidence, on the one hand, and those cases, such as the present one, on the other hand, where the officer has no responsibility or duty to, or agreement with, the sovereign seeking to use the evidence. The seminal cases that apply the exclusionary rule to a civil proceeding involve “intrasovereign” violations, a situation we need not consider here. In some cases the courts have refused to create an exclusionary rule for either intersovereign or intrasovereign violations in proceedings other than strictly criminal prosecutions. See United States ex rel. Sperling v. Fitzpatrick, 426 F. 2d 1161 (CA2 1970) (intrasovereign/parole revocation); United States v. Schipani, 435 F. 2d 26 (CA2 1970), cert. denied, 401 U. S. 983 (1971) (intersovereign/sentenc-ing). And in Compton v. United States, 334 F. 2d 212, 215-216 (1964), a case remarkably like this one, the Fourth Circuit held that the presumption of correctness given a tax assessment was not affected by the fact that the assessment was based upon evidence unconstitutionally seized by state criminal law enforcement officers. Only one case cited by the respondent squarely holds that there must be an exclusionary rule barring use in a civil proceeding by one sovereign of material seized in violation of the Fourth Amendment by an officer of another sovereign. In Suarez v. Commissioner, 58 T. C." }, { "docid": "8704886", "title": "", "text": "IRS had the burden of proof for 1983. At issue in this appeal is the burden of proof for tax years 1984 and 1985. Generally, a presumption of correctness attaches to notices of deficiency in the Tax Court. See Palmer v. United States Internal Revenue Serv., 116 F.3d 1309, 1312 (9th Cir.1997); Rapp v. Commissioner, 774 F.2d 932, 935 (9th Cir.1985); Delaney v. Commissioner, 743 F.2d 670, 671 (9th Cir.1984). For the presumption to apply, however, the Commissioner must base the deficiency on some substantive evidence that the taxpayer received unreported income. See id.; see also United States v. Janis, 428 U.S. 433, 442, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) (holding that the presumption does not apply when the IRS makes a naked assessment without foundation). If the Commissioner introduces some evidence that the taxpayer received unreported income, the burden shifts to the taxpayer to show by a preponderance of the evidence that the deficiency was arbitrary or erroneous. See Rapp, 774 F.2d at 935. • If the petitioner succeeds in showing that the deficiency was arbitrary or erroneous, the burden shifts back to the Commissioner to show that the assessment was correct. See Palmer, 116 F.3d at 1312; Keogh v. Commissioner, 713 F.2d 496, 501 (9th Cir.1983). Thus, the Commissioner only needed to present some substantive evidence that Hardy received income in 1984 and 1985 in order to shift the burden to Hardy. To that end, the Commissioner introduced worksheets calculating the amount of tax owed by Hardy based on income statements that the IRS had received from Mr¡ Hardy’s employer and his bank. Further, Hardy stipulated before trial that the IRS had received income statements regarding Mr. Hardy’s income from his employer during the years in question, therefore relieving the Commissioner of the necessi-. ty to introduce the income statements at trial. Finally, Hardy stipulated that she had been married to Mr. Hardy during the years in question and that they had lived in Nevada. Based on these stipulations, the fact that Nevada is a community property state, and the fact that spouses in community property states" }, { "docid": "22706904", "title": "", "text": "burden of showing the amount of the deficiency then shifts to the Commissioner. Others hold that the burden of showing the correct amount of the tax remains with the taxpayer. However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case. See United States v. Rexach, 482 F. 2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U. S. 1039 (1973); Pizzarello v. United States, 408 F. 2d 579 (CA2), cert. denied, 396 U. S. 986 (1969); Suarez v. Commisioner, 58 T. C. 792, 814-815 (1972). But cf. Compton v. United States, 334 F. 2d 212, 216 (CA4 1964). Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous. For purposes of this case, we need not go so far as to accept the Government’s argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent or even to shift the burden to the Government. We are willing to assume that if the District Court was correct in ruling that the evidence seized by the Los Angeles police may not be used in formulating the assessment (on which both the levy and the counterclaim were based), then the District Court was also correct in granting judgment for Janis in both aspects of the present suit. This assumption takes us, then, to the primary issue. Ill This Court early pronounced a rule that the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” renders evidence falling within the Amendment’s prohibition inadmissible. Boyd v. United States, 116 U. S. 616 (1886). It was not until 1914, however, that the Court held that the Fourth Amendment alone may be the basis for excluding from a federal criminal trial evidence seized by a federal officer in violation solely of that Amendment. Weeks v. United States, 232 U. S. 383. This comparatively late judicial creation of" }, { "docid": "11049380", "title": "", "text": "taxpayer only serve to reinforce this conclusion. Thus, under the common law rationale, the loss of the presumption of correctness does not alter the fundamental nature of a refund suit as an assumpsit action for money had and received, in which the burden is borne by the party seeking to recover funds. And, under the modern rationale for allocating the burden, even without the presumption, the taxpayer remains the party seeking to press a claim and best positioned to preserve and bring forward evidence bearing on the facts of that claim. Accordingly, imposing the burden of proof on the taxpayer, even where no presumption of correctness arises, is essentially consistent with the rationale for imposing this burden on the taxpayer in the ordinary case. Plaintiff, however, suggests that Supreme Court’s decision in Janis dictates a different conclusion, namely, that'where the presumption of correctness does not arise, the burden of proof on the taxpayer’s claim is shifted to the government. In Janis, a wagering tax case, the Supreme Court was required to decide whether evidence obtained by State law enforcement officers in violation of the taxpayer’s rights under the Fourth Amendment could be introduced by the Government in a civil tax case. Without such evidence, the assessment would be “naked and without any foundation.” Quoting Helvering v. Taylor, 293 U.S. at 514, 55 S.Ct. 287 the Court stated that the “determination of tax due then may be one ‘without rational foundation and excessive,’ and not properly subject to the usual rule with respect to the burden of proof in tax cases.” Janis, 428 U.S. at 441, 96 S.Ct. 3021. The Court noted the existence of an intercircuit conflict “as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect,” but observed that this “debate does not extend to the situation where the assessment is shown to be naked and without any foundation. The courts then appear to apply the rule of the Taylor case.” Id. at 442, 96 S.Ct. 3021. The language in Janis, which some courts have observed" }, { "docid": "1260132", "title": "", "text": "determination, as modified by certain concessions and adjust ments, was incorrect, and judgment was entered against him. Erickson reasserts both of his arguments on appeal. DISCUSSION It is well-established that the Commissioner’s deficiency determination in a civil case is presumptively correct, and that the taxpayer bears the burden of coming forward with sufficient evidence to overcome the presumption. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Jones v. Commissioner, 903 F.2d 1301, 1303 (10th Cir.1990); Zell v. Commissioner, 763 F.2d 1139, 1141 (10th Cir.1985). However, the presumption of correctness “is only as strong as its rational underpinnings. Where it lacks a rational basis the presumption evaporates.” Llorente v. Commissioner, 649 F.2d 152, 156 (2d Cir.1981). Some reasonable foundation for the assessment is necessary to preserve the presumption of correctness. Jones v. Commissioner, 903 F.2d at 1304. See United States v. Janis, 428 U.S. 433, 442, 96 S.Ct. 3021, 3026, 49 L.Ed.2d 1046 (“Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous.”), reh’g denied, 429 U.S. 874, 97 S.Ct. 196, 50 L.Ed.2d 158 (1976); Gerardo v. Commissioner, 552 F.2d 549, 554 (3d Cir.1977) (“[I]n order to give effect to the presumption on which the Commissioner relies, some evidence must appear which would support an inference of the taxpayer’s involvement in [illegal] activity during the period covered by the assessment. Without that evidentiary foundation, minimal though if [sic] may be, an assessment may not be supported even where the taxpayer is silent.”); De Cavalcante v. Commissioner, 620 F.2d 23, 28 (3d Cir.1980) (presumption of correctness requires “a minimal factual basis”); Carson v. United States, 560 F.2d 693, 696 (5th Cir.1977) (some factual foundation necessary for presumption of correctness to attach). Cf. Weimerskirsch v. Commissioner, 596 F.2d 358, 360 (9th Cir.1979) (“[B]efore the Commissioner can rely on this presumption of correctness, the Commissioner must offer some substantive evidence showing that the taxpayer received income from the charged activity.”) (emphasis added). Naked or purely arbitrary assessments are not entitled to a presumption of correctness. See Llorente v. Commissioner, 649" }, { "docid": "23156921", "title": "", "text": "of Internal Revenue, 250 F.2d 242, 249 (5th Cir. 1957), cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 844 (1958) (same). See also Paschal v. Blieden, supra (bankruptcy). . In attacking state tax assessments as unconstitutional, the taxpayer must show the assessment to be arbitrary by “dear and convincing evidence.” In re Lang Body Co., 92 F.2d 338, 341 (6th Cir. 1937), cert. denied sub nom. Hipp v. Boyle, 303 U.S. 637, 58 S.Ct. 522, 82 L.Ed. 1097 (1938). . Molitor was actually not the taxpayer, but the employer. However, his liability for the statutory penalty, see Int.Rev. Code of 1954 § 6672, is treated like the liability of a taxpayer. See 337 F.2d at 924. . On the other hand, the taxpayer is in an equally advantageous position as to proof of fraud, whether the action is one to review a deficiency, Int.Rev.Code of 1954 § 7454, to recover a refund, see Paddock v. United States, 280 F.2d 563 (2d Cir. 1960), or to collect a tax liability, as here. In all such proceedings, the Government must prove fraud by clear and convincing evidence. . There is no question in this case about the propriety of the charge that the taxpayer need only establish that the assessment is erroneous, and the Government must prove the precise amount owing. In a refund case, the rule is apparently otherwise, the taxpayer being required to prove the amount of the refund due. See Compton v. United States, 334 F.2d 212, 216 (4th Cir. 1964); 10 Mertens, Federal Income Taxation § 58A.35 n. 15 (Zimet rev. 1964). Compare United States v. Sampsell, 224 F.2d 721, 723 (9th Cir. 1955) (bankruptcy). . In a criminal ease the Government, of course, has the traditional burden of persuasion beyond a reasonable doubt, and a mere assessment cannot there play the same role in proving the Government’s ease. See Price v. United States, supra, 335 F.2d at 677. . We find no merit in Lease’s additional argument that the presumption of correctness exists only with respect to performance of official acts by adjudicative officers and" }, { "docid": "14739791", "title": "", "text": "use of the fraud evidence by the district judge himself reinforces this interpretation. The district judge used the fraud evidence in deciding that the taxpayers’ records were inadequate, id. at 55 n. 9, and in showing a likely source of income to justify the use of the net worth method, id. We are satisfied that the district court’s admission of the fraud evidence was not so restricted as appellants contend, and that it is available to supply the Weimerskirch factual foundation. We conclude the district court properly held that the presumption of correctness applied to the assessments. B. Taxpayers’ Rebuttal of the Presumption The taxpayers contend that they successfully rebutted the presumption of correctness by demonstrating substantial errors in the assessments. Introduction of the presumptively correct assessment shifts the burden of proof to the taxpayer. United States v. Molitor, 337 F.2d 917, 922 (9th Cir.1964). If the taxpayer rebuts the presumption, it disappears. In a suit to collect tax on unreported income, the burden of proving the deficiency then reverts to the government. Herbert v. Commissioner, 377 F.2d 65, 69 (9th Cir.1967); 9 Mertens, Law of Federal Income Taxation § 49.218 (1976). To rebut the presumption of correctness, the taxpayer has the burden of proving that the assessment is “arbitrary or erroneous.” Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 291, 79 L.Ed. 623 (1935); Cohen v. Commissioner, 266 F.2d 5, 11 (9th Cir.1959). Where an assessment is based on more than one item, the presumption of correctness attaches to each item. Proof that an item is in error destroys the presumption for that single item; the remaining items retain their presumption of correctness. Clark v. Commissioner, 266 F.2d 698, 707 (9th Cir.1959); Hoffman v. Commissioner, 298 F.2d 784, 788 (3d Cir.1962); Foster v. Commissioner, 391 F.2d 727, 735 (4th Cir.1968); Anderson v. Commissioner, 250 F.2d 242, 246 (5th Cir.1957); Banks v. Commissioner, 322 F.2d 530, 538 (8th Cir.1968). Even where the assessment has separable items, however, error which demonstrates a pattern of arbitrariness or carelessness will destroy the presumption for the entire assessment. Hoffman v. Commissioner, 298" }, { "docid": "23697635", "title": "", "text": "though it may be based on hearsay or other evidence inadmissible at trial. See Clapp v. Commissioner, 875 F.2d 1396, 1402-03 (9th Cir.1989); Zuhone v. Commissioner, 883 F.2d 1317, 1326 (7th Cir.1989); Dellacroce v. Commissioner, 83 T.C. 269, 280 (1984). Justification for the presumption of correctness lies in the government’s strong need to accomplish swift collection of revenues and in the need to encourage taxpayer recordkeeping. Carson, 560 F.2d at 696. The need for tax collection does not serve to excuse the government, however, from providing some factual foundation for its assessments. Id. “The tax collector’s presumption of correctness has a herculean muscularity of Goliathlike reach, but we strike an Achilles’ heel when we find no muscles, no tendons, no ligaments of fact.” Id. In this case we find that the notice of deficiency lacks any “ligaments of fact.” As the Supreme Court has held, the presumption of correctness does not apply when the government’s assessment falls within a narrow but important category of a “ ‘naked’ assessment without any foundation whatsoever_” Janis, 428 U.S. at 442, 96 S.Ct. at 3026. Several courts, including this one, have noted that a court need not give effect to the presumption of correctness in a case involving unreported income if the Commissioner cannot present some predicate evidence supporting its determination. Carson, 560 F.2d at 696; Anastasato, 794 F.2d at 887; Weimerskirch v. Commissioner, 596 F.2d 358, 360 (9th Cir.1979); Pizzarello v. United States, 408 F.2d 579 (2d Cir.), cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969). Although a number of these cases involved unreported illegal income, given the obvious difficulties in proving the non-receipt of income , we agree with the Third Circuit that this principle should apply whether the unreported income was allegedly obtained legally or illegally. See Anastasato, 794 F.2d at 887. Therefore, before we will give the Commissioner the benefit of the presumption of correctness, he must engage in one final foray for truth in order to provide the court with some indicia that the taxpayer received unreported income. The Commissioner would merely need to attempt" }, { "docid": "11049383", "title": "", "text": "not prove the correct amount of tax owed, stating “[w]e find nothing ... that gives any support to the idea that the commissioner’s determination, shown to be without rational foundation and excessive, will be enforced unless the taxpayer proves he owes nothing or ... shows the correct amount.” 293 U.S. at 514, 55 S.Ct. 287. Thus, the quoted language in Taylor did not involve any aspect of the burden of proof in a refund action. See Moraski, supra at 147. As such, this court is unwilling to read Janis as dictating that in a “naked” assessment case, the burden of proof on the taxpayer’s claim is shifted to the government. It is conceivable that, in some case, the Service’s conduct could be so reprehensible that the integrity of the judicial process would demand that this court take appropriate remedial action. Such action might very well include shifting the burden of proof on the plaintiffs refund claim. But, there has been no showing that such is the case here. Accordingly, this court concludes that even if the assessment in question is shown to be naked, the burden of proof in the instant case as to the claims stated in the complaint will remain on the plaintiff. C. The Burden of Proof on the Defendant’s Counterclaim In its counterclaim, the government demands payment of the entire section 6672 penalty, plus unpaid interest and collection fees and costs. The pending motions raise two additional issues with respect to this counterclaim. Plaintiff first argues that this counterclaim should be dismissed, due to what plaintiff portrays as an absolute absence of a factual predicate for the claim. He analogizes a counterclaim in a refund action to a setoff defense and points to Mahoney v. United States, 223 Ct.Cl. 713, 718, 1980 WL 4712 (1980), and Missouri Pacific Railroad Co. v. United States, 168 Ct.Cl. 86, 338 F.2d 668 (1964), for the proposition that the government must possess a minimum factual basis before raising counterclaims in a section 6672 case. In Missouri Pacific, the court required the government to support its setoff defense by coming forward" } ]

[ { "docid": "22294503", "title": "", "text": "not deny that the police chief was its sole policymaker. Our remaining inquiry is this: was there some policy or custom or action attributable to the police chief that was a cause of Grandstaff’s death? By properly identifying the policy, we decide the inquiry in the affirmative. (a) Inadequate training as cause: In Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Supreme Court held that past constitutional violations by subordinates are not necessarily sufficient to prove a policy of the supervisor causally linked to subsequent constitutional deprivations. The Court could find “no affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [certain named defendants] — express or otherwise — showing their authorization or approval of such misconduct.” Id. at 371, 96 S.Ct. at 604, 46 L.Ed.2d at 569. The Supreme Court has elaborated on the causal requirement by holding that the connection must be more than de facto; the policy must be “the moving force of the constitutional violation.” Monell, 436 U.S. at 694, 98 S.Ct. 2037, 56 L.Ed.2d at 638; see also Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). An “inadequate” training program alone is not ordinarily the moving force behind an injured plaintiff’s harm, because the police officer who injures the plaintiff does not rely upon inadequate training as tacit approval of his conduct. It is not enough that the city could, but does not, reduce the risk of harm to the plaintiff. See Milligan v. City of Newport News, 743 F.2d 227 (4th Cir.1984); Dunn v. Tennessee, 697 F.2d 121, 128 (6th Cir.1982), cert. denied, 460 U.S. 1086, 103 S.Ct. 1778, 76 L.Ed.2d 349 (1983); Wilson v. Beebe, 612 F.2d 275 (6th Cir.1980); Watson v. Interstate Fire & Casualty Co., 611 F.2d 120 (5th Cir.1980); Kostka v. Hogg, 560 F.2d 37 (1st Cir.1977). Nor does it satisfy the causal link/moving force requirement to prove that a supervisor has failed to satisfy a general responsibility to supervise employees imposed by state" } ]

[ { "docid": "23205491", "title": "", "text": "district court properly granted summary judgment on the second basis, i.e., that there was no evidence that the City had a custom or policy that was the moving force behind Officer Waller’s shooting of Hileman and Smith. As discussed above, Monell requires that for a municipality to be held liable under § 1983, a municipal policy or custom must be the moving force behind the constitutional injury. “[T]o satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)), cert. denied, - U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). In this case, plaintiffs argue that the City’s alleged failure to investigate information of misconduct on the part of Waller satisfies the official policy requirement. On the other hand, the City contends that the evidence shows that the City did investigate the allegations of misconduct. Regardless of whether the City failed to investigate the allegations of misconduct, and regardless of whether such failure amounted to a policy or custom, plaintiffs have not presented any evidence to indicate that the failure to investigate other unconnected misconduct was the moving force behind the shooting of plaintiffs. Furthermore, although plaintiffs’ complaint alleges that the shooting resulted from the City’s failure to train Waller and other officers, plaintiffs have not pointed to any evidence in the record that would indicate that the City’s training of police officers was inadequate, or that the alleged failure to train resulted from the City’s deliberate indifference, both of which are required for failure to train to be actionable. See City of Canton, 489 U.S. 378, 109 S.Ct. 1197. Accordingly, summary judgment for the City was appropriate because there is no indication in the record that a policy or custom of the City caused plaintiffs’ alleged constitutional injuries. The district court also properly granted summary judgment to defendant. Newby on plaintiffs’ § 1983" }, { "docid": "22881430", "title": "", "text": "510 U.S. 826, 114 S.Ct. 90, 126 L.Ed.2d 57 (1993). In turn, the notion of “law” must include “[djeeply embedded traditional ways of carrying out state policy.” Nashville, Chattanooga & St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369, 60 S.Ct. 968, 972, 84 L.Ed. 1254 (1940). It must reflect a course of action deliberately chosen from among various alternatives. City of Oklahoma v. Tuttle, 471 U.S. 808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985). In short, a “custom” is a “legal institution” not memorialized by written law. Feliciano, 988 F.2d at 655. In addition to showing that the School Board as an entity “caused” the constitutional violation, plaintiff must also show a direct causal link between the custom and the constitutional deprivation; that is, she must “ ‘show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (emphasis added) (citation omitted), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). This requirement is necessary to avoid de facto respondeat superior liability explicitly prohibited by Monell. The analytical difficulty in this case stems from the type of “custom” that the plaintiff claims directly caused Davis to sexually abuse her. Doe does not claim that the School Board had a custom of affirmatively condoning sexual abuse. Clearly, no municipality could have such a policy. Rather, Doe claims that the custom was to fail to act to prevent the sexual abuse. To state a municipal liability claim under an “inaction” theory, Doe must establish: (1) the existence of a clear and persistent pattern of sexual abuse by school employees; (2) notice or constructive notice on the part of the School Board; (3) the School Board’s tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and (4) that the School Board’s custom was the “moving force” or direct causal link in the constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378," }, { "docid": "17424948", "title": "", "text": "policy the City had regarding the use of riot guns loaded with wooden baton rounds allowed those guns to be used before extensive warnings, warning shots, or tear gas — all of which would have decreased the risk of serious bodily injury. The City therefore had a policy that caused the excessive force, thereby causing Plaintiffs injury. The second ground for municipal liability here is based on the City’s ratification of the unlawful conduct. Defendants are correct that, generally speaking, evidence of later events cannot establish that a given violation was caused by an official custom or policy. See Joy v. City of Dayton, No. C-3-90-132, 1991 WL 1092505, at *9-10 (S.D.Ohio June 28,1991); see also Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir.1994) (finding insufficient evidence that the City’s failure to investigate unconnected misconduct was the moving force behind the instant constitutional violation). A municipality may, however, ratify its employees’ acts — thereby subjecting itself to § 1983 liability — by failing meaningfully to investigate those acts. Wright v. City of Canton, 138 F.Supp.2d 955, 966 (N.D.Ohio 2001); see Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246-48 (6th Cir.1989); Marchese v. Lucas, 758 F.2d 181, 188 (6th Cir.1985). Viewed in this light, evidence that a municipality inadequately investigated an alleged constitutional violation can be seen as evidence of a policy that would condone the conduct at issue. In Márchese, a prisoner who had threatened a police officer was twice beaten while in police custody. The sheriff failed either to investigate the incident or to punish the officers involved. The court initially noted that even though the sheriff was not present during the beatings, he was sued in his official capacity and, “in that capacity, he had a duty to both know and act.” Márchese, 758 F.2d at 188. The court concluded that the official policy of the sheriff and the county (1) did not require appropriate training or discipline of the police officers, and (2) would not engender either investigation or sanctions against officers when such an assault occurred. The court stated, “It is this" }, { "docid": "13437874", "title": "", "text": "scope of his authority to hold contempt hearings and to punish contempt. The defendants’ actions were within their jurisdiction and can only be described as an integral part of the judicial process in the establishment and enforcement of court orders concerning child support payments. Even assuming the plaintiffs’ allegations to be true, there can be no question that Judge Turner and the judicial referees were empowered to handle juvenile court eases and were not acting in a clear absence of all jurisdiction. The district court’s grant of summary judgment in favor of Judge Turner and the judicial referees and employees on plaintiffs’ claims for monetary relief is affirmed. D. Monetary Damages Against The County The plaintiffs contend that defendant Turner is a local official with final policy-making authority to interpret and apply the statutes challenged here. Hence, they argue that because Turner is either interpreting and applying constitutionally flawed statutes, or interpreting and applying constitutionally adequate statutes in a constitutionally flawed manner, his actions are attributed to the county, which, in turn, is subject to § 1983 liability. We are not persuaded by the plaintiffs’ theory. It is well-established that a local government official with final policy-making authority under state law may, by his actions, subject the local government for which he works to § 1983 liability. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1299-300, 89 L.Ed.2d 452 (1986) (finding the county responsible for actions taken pursuant to decisions of county prosecutor and county sheriff); Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.1993) (city police chief did not exercise final policy-making authority regarding drug testing of police officers). However, the plaintiff must “‘identify the policy, connect the policy to the [county] itself and show that the particular injury was incurred because of the execution of that policy.’” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. Wixom, 820 F.2d 170, 176 (6th Cir.1987)); see also Monell v. Dep’t" }, { "docid": "19959574", "title": "", "text": "had failed to chai- lenge the police chiefs policymaking authority until after all of the evidence had been presented to the jury). We therefore conclude that a reasonable juror could find that Sheriff Hall’s interpretation represented the County’s policy with respect to weekend medical treatment and that, when viewed in the light most favorable to Ford, the County’s policy permitted jail officials to “contact” medical staff by simply leaving a medical form in the nurse’s inbox, even though this means that the nurse might not see the form until up to 48 hours later. But identifying the County’s policy constitutes only the beginning, rather than the end, of our inquiry. This is because it is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal fink between the municipal action and the deprivation of federal rights. Bd. of County Comm’rs, 520 U.S. at 404, 117 S.Ct. 1382 (emphasis in original). The key inquiry thus becomes whether, in viewing the County’s policy in the light most favorable to Ford, there was sufficient evidence for reasonable minds to find “a direct causal link” between the County’s policy and the alleged denial of Ford’s right to adequate medical care. See, e.g., Blackmore v. Kalamazoo County, 390 F.3d 890, 900 (6th Cir.2004) (“A municipality can be hable under 42 U.S.C. § 1983 only if the plaintiff can demonstrate that his civil rights have been violated as a direct result of that municipality’s policy or custom.”) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018); Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (“[T]o satisfy the Monell requirements^] a plaintiff must identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” (internal quotation marks omitted)). The County" }, { "docid": "13437875", "title": "", "text": "§ 1983 liability. We are not persuaded by the plaintiffs’ theory. It is well-established that a local government official with final policy-making authority under state law may, by his actions, subject the local government for which he works to § 1983 liability. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 924, 99 L.Ed.2d 107 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 1299-300, 89 L.Ed.2d 452 (1986) (finding the county responsible for actions taken pursuant to decisions of county prosecutor and county sheriff); Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir.1993) (city police chief did not exercise final policy-making authority regarding drug testing of police officers). However, the plaintiff must “‘identify the policy, connect the policy to the [county] itself and show that the particular injury was incurred because of the execution of that policy.’” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. Wixom, 820 F.2d 170, 176 (6th Cir.1987)); see also Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 694-95, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Although it is less than clear, the plaintiffs apparently identify a memorandum issued by Judge Turner on December 4, 1990, as the alleged policy that subjects the county to liability: When a respondent is summoned to Court in a proceeding to establish child support and fails to answer the summons, the Court may take a default judgment. If officers are unable to locate him for service of summons, the Court will order that an Attachment Pro Corpus issue to take the person into custody and bring him or her before the Court in accordance with Tennessee Annotated Section 37-1-122. This memorandum was sent to the referees, the clerk of the court, and the Chief Administrative Officer. All parties agree that this is, in general terms, the process by which an attachment pro corpus is issued through the juvenile court. The district court properly concluded that Judge Turner’s memorandum that discusses the initiation of the attachment" }, { "docid": "6913946", "title": "", "text": "of law stems from the United States Supreme Court’s holding in Monell v. Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which determined that a local government may not be sued solely because of an injury inflicted by an employee but may be sued when the employee’s acts represent the execution of a government policy or custom and is the moving force for the constitutional violation. As the Sixth Circuit has said in repeating that standard, “to satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)); see also Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir.1994). Although these standards are difficult to meet in the average case, courts have held that they are met by evidence that the policy makers fostered and approved of the challenged conduct, see Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir.1985), or where there is a failure to adequately train officers resulting from deliberate indifference which causes the injury in question, see Matthews v. Jones, 35 F.3d 1046 (6th Cir.1994). In this case, there is sufficient evidence to support a verdict against the City of Lansing on both theories. The restraint of Swans with the kick-stop restraint device was conduct uniformly performed by six separate officers under the watch of the Jail Administrator and after-wards was condoned by the Police Chief and the City’s attorney as consistent with city policy. The conduct which was affirmed as done pursuant to city policy was clearly shown ' on videotape so that the jury understood that city policy favored the use of excessive force in violation of the Fourth Amendment. The use of the restraint device on Swans was consistent with the unstated city policy of using maximum restraints on non-compliant prisoners in at least a “hundred” prior" }, { "docid": "23205490", "title": "", "text": "Springfield v. Kibbe, 480 U.S. 257, 267, 107 S.Ct. 1114, 1119, 94 L.Ed.2d 293 (1987) (O’Connor, J., dissenting)); see also Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. The local government’s policy or custom “must be ‘the moving force of the constitutional violation’ in order to establish the liability of a government body under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38). The district court granted summary judgment to the City on two independent bases. The first basis was that Michael and Officer Waller were not acting under color of state law when they shot Hileman and Smith. The second basis was that there was no evidence that the City had a custom or policy that was the moving force behind Officer Waller’s decision to shoot Hileman and Smith. While there may be a question concerning the first basis upon which the district court granted summary judgment to the City, we conclude that the district court properly granted summary judgment on the second basis, i.e., that there was no evidence that the City had a custom or policy that was the moving force behind Officer Waller’s shooting of Hileman and Smith. As discussed above, Monell requires that for a municipality to be held liable under § 1983, a municipal policy or custom must be the moving force behind the constitutional injury. “[T]o satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)), cert. denied, - U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). In this case, plaintiffs argue that the City’s alleged failure to investigate information of misconduct on the part of Waller satisfies the official policy requirement. On the other hand, the City contends that the evidence shows that the City" }, { "docid": "17424946", "title": "", "text": "364 (6th Cir.1993) (stating that plaintiff must identify the policy at issue, connect the policy to the governmental body, and show that injuries were incurred because of the execution of that policy) (citing Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)). Plaintiff argues that the City should be held liable under § 1983 for failure to supervise, failure to train, failure to investigate or discipline, and failure to develop plans and policies to deal effectively with a long known and recognized risk of isolated misconduct during student celebrations. Defendants contend that Plaintiff has failed to present evidence sufficient to support the key elements of her claims against the City. In particular, Defendants relate the details of the extensive training that prepares officers for riot situations and of the extensive planning that is part of the CDP’s preparation for such situations. Defendants also assert that incidents that occurred after Plaintiffs injury — including other alleged constitutional violations by police on April 29, 2001, and the alleged failure to investigate or discipline — cannot be relevant to whether a City policy or custom caused Plaintiffs injury. There are two distinct bases that support municipal liability in this case. First, liability may be based on the City policy that allows the use of wooden baton rounds as a “first resort” — before the use of less dangerous alternatives. Plaintiff has presented evidence that the City has a policy of discouraging the use of tear gas. Cur-mode testified that she was ordered by the Deputy Chief of the CDP to discourage the SWAT unit’s use of tear gas. This order originated from the policy level of the City and therefore represents City policy, even though.it is an unwritten policy. This order was a moving force behind the decision to use wooden baton rounds, or at least to use wooden baton rounds as the first resort, so soon after providing a warning. The Court has already held that the mere use of knee knocker rounds under the circumstances here was excessive force, at least under the facts as presented by Plaintiff. Whatever" }, { "docid": "6913947", "title": "", "text": "policy makers fostered and approved of the challenged conduct, see Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir.1985), or where there is a failure to adequately train officers resulting from deliberate indifference which causes the injury in question, see Matthews v. Jones, 35 F.3d 1046 (6th Cir.1994). In this case, there is sufficient evidence to support a verdict against the City of Lansing on both theories. The restraint of Swans with the kick-stop restraint device was conduct uniformly performed by six separate officers under the watch of the Jail Administrator and after-wards was condoned by the Police Chief and the City’s attorney as consistent with city policy. The conduct which was affirmed as done pursuant to city policy was clearly shown ' on videotape so that the jury understood that city policy favored the use of excessive force in violation of the Fourth Amendment. The use of the restraint device on Swans was consistent with the unstated city policy of using maximum restraints on non-compliant prisoners in at least a “hundred” prior cases. Although the restraint device was commonly used by the officers in the Jail, the officers were not trained concerning the manufacturer’s warnings about the use of the device as reflected in their treatment of Swans and in other testimony and despite that the manufacturer’s warnings suggested that death might result from improper use of the device. Under these circumstances, there is sufficient evidence to support the jury’s findings that the City had adopted policies favoring the use of excessive force by its officers and that the City by its failure to train and deliberate indifference had caused both excessive force and a failure to provide needed emergency medical and psychological care to Edward Swans. ‘ Defendant Viele’s contention that the evidence against him was insufficient to support liability for denial of medical care is also incorrect. The evidence submitted at trial showed that Defendant Viele violated Swans’ constitutional rights on two instances: first, when he delivered Swans for booking at the Jail instead of taking him for immediate medical care, which was obvious from" }, { "docid": "6552412", "title": "", "text": "Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). The deprivations arising from the decisions of its duly constituted legislative body or of those officials whose acts must fairly be said to be those of the [municipality]. Id. A municipality may be held liable under Section 1983 only when an employee tort-feasor is acting under color of an official policy and the policy is the moving force behind the alleged constitutional violation. City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). A plaintiff must “identify the policy, connect the policy to the city itself, and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 367 (6th Cir.1993). Furthermore, a municipality may not be held liable under Section 1983 unless the plaintiff proves the existence of an unconstitutional policy promulgated by officials having final policy-making authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 128, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). Although § 1983 does not allow municipalities to be sued under a theory of respondeat superior, a failure to train is a cognizable claim if “the failure to train amounts to deliberate indifference to the rights of the person with whom the police come into contact.” Harris, 489 U.S. at 388, 109 S.Ct. 1197; see also Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 93 (1st Cir.1994). The municipality’s policy must be the “moving force [behind] the constitutional violation.” Harris, 489 U.S. at 388, 109 S.Ct. 1197 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018 and Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509(1981)). The Supreme Court opined: Only where a municipality’s failure to train its employees in a relevant respect evidences a “deliberate indifference” to the rights of its inhabitants can such a shortcoming be properly thought of as a city “policy or custom” that is actionable under § 1983.... “Municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow" }, { "docid": "3279108", "title": "", "text": "make clear that “deliberate indifference” liability could not rest on actual or constructive knowledge of an inconsequential risk. In our view, the jurors would have read the instruction in this way, and the instruction is a correct statement of the law. Section 1983 Claim We find no fault in the trial court’s § 1983 instruction. It was based on Doe v. Claiborne County Bd. of Educ., 103 F.3d 495, 507 (6th Cir.1996), a teacher harassment case. There, after noting that § 1983 municipal liability requires proof of an unconstitutional policy, the court said: In addition to showing that the School Board as an entity “caused” the constitutional violation, plaintiff must also show a direct causal link between the custom and the constitutional deprivation; that is, she must “ ‘show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993)(emphasis added) (citation omitted), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). This requirement is necessary to avoid de facto respondeat superior liability explicitly prohibited by Monell. The analytical difficulty in this case stems from the type of “custom” that the plaintiff claims directly caused Davis to sexually abuse her. Doe does not claim that the School Board had a custom of affirmatively condoning sexual abuse. Clearly, no municipality could have such a policy. Rather, Doe claims that the custom was to fail to act to prevent the sexual abuse. To state a municipal liability claim under an “inaction” theory, Doe must establish: (1) the existence of a clear and persistent pattern of sexual abuse by school employees; (2) notice or constructive notice on the part of the School Board; (3) the School Board’s tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and (4) that the School Board’s custom was the “moving force” or direct causal link in the constitutional deprivation. See City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197," }, { "docid": "6934673", "title": "", "text": "taught by Bolz violated O’Brien’s Fourth Amendment rights. Therefore, if these policies are the policies of Grand Rapids, then Grand Rapids is liable. The law protects cities in a different way than it protects agents or employees of a city. The latter are protected by a doctrine of qualified immunity when they act in an objectively reasonable fashion. As to them, the question is one of reasonableness, in light of their teaching, the facts, and the law. The city is not entitled to the leeway of such protection. However, the law requires special care in making certain that the policies and procedures the city establishes and recommends to its agents and employees, or the customs that it tolerates, fairly represent official policies. Respondeat superior is not enough. Monell v. New York City Dep’t of Soc. Serv., 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). Instead, it is when execution of a government’s policy of custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. To satisfy the policy requirements of Mo-nell, a plaintiff must “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994) (quoting Coogan v. Wixom, 820 F.2d 170, 176 (6th Cir.1987). Under Monell, a “custom” is a legal institution that is permanent and established, but is not authorized by written law.... Before a custom can be the basis for a civil rights violation, the custom must be “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Feliciano v. Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, — U.S. -, 114 S.Ct. 90, 126 L.Ed.2d 57 (1993) (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036). Plaintiff has met these standards." }, { "docid": "2790506", "title": "", "text": "L.Ed.2d 40 (1988); Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Flagg Brothers Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Plaintiff has not sued any individual defendants, but the City of Dayton directly. Municipalities and other bodies of local government are “persons” within the meaning of § 1983 and may therefore be sued directly if they are alleged to have caused a constitutional tort through a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The policy must be deliberate and discernible. Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.1988), cert denied, 489 U.S. 1068, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989). To recover, a plaintiff must identify the policy, connect the policy to the political subdivision itself, and show that the particular injury was incurred because of the execution of that policy. Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir.1993). Plaintiff has not identified any policy adopted by the City of Dayton itself which caused the release of these documents. Janice Brooks’ Affidavit indicates the records were released pursuant to the Ohio Public Records law, Ohio Revised Code § 149.43. The Court presumes that the City had, in 1997, a policy of following the Ohio Public Records law, and that is the City policy which resulted in the release of these records. The City’s behavior in 1997 reflects what was then the best understanding of what the law in general and the Ohio Public Records Act in particular required. The Act rests upon the “fundamental policy of promoting open government, not restricting it.” State ex rel. The Miami Student v. Miami Univ., 79 Ohio St.3d 168, 171, 680 N.E.2d 956 (1997); State ex rel Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d 1239 (1997). The Act is to be “liberally construed in favor of broad access.” State ex rel Wadd v. Cleveland, 81 Ohio St.3d" }, { "docid": "7653946", "title": "", "text": "A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must “identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). Graham’s claim is based upon the County’s contract with SecureCare, which gives SecureCare responsibility over the provision of medical care to prisoners in the County jail. The County concedes that this contract constitutes a municipal “policy” within the meaning of Monell. The primary issue is whether Graham has alleged sufficient facts to establish that the alleged constitutional violation happened “because of the execution of [the County’s] policy.” Id. (emphasis added). There must be “a direct causal link” between the policy and the alleged constitutional violation such that the County’s “deliberate conduct” can be deemed the “moving force” behind the violation. Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir.2001) (citing Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)) (quotation marks omitted); see also Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). These stringent standards are “necessary to avoid de facto respondeat superior liability explicitly prohibited by Monell.” Doe, 103 F.3d at 508. Applying these standards, we conclude that Graham has failed to establish the requisite causal link between the County’s policy and the alleged constitutional violation. As noted, Graham believes that two particular aspects of the contract are most problematic. First, she argues that the contract impermissibly creates a policy of “automatic deference” by jail personnel to SecureCare medical staff with respect to decisions concerning prisoners’ medical treatment. According to Graham, that so-called automatic deference policy is reflected in a provision stating that Secure-Care “will have the responsibility of determining whether emergency services and/or hospitalization are necessary.” Additionally, she relies upon a “Medical Autonomy” standard appearing in the “SecureCare, Inc. Washtenaw County Sheriff Department Policies and Procedures Manual,” which reads: “PURPOSE:" }, { "docid": "17424945", "title": "", "text": "658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The doctrine of respondeat superi- or is inapplicable in § 1983 actions. Id. Rather, municipal liability can attach only when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts may fairly be said to represent official policy, inflicts the injury. Id. at 694, 98 S.Ct. 2018. Moreover, the official policy or custom “must be the moving force of the constitutional violation in order to establish the liability of a government body under § 1983.” Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting Monell, 436 U.S. at 694, 98 S.Ct. 2018); see also Bd. of County Comm’rs v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (noting that a plaintiff must show that municipal action was taken with requisite degree of culpability and must demonstrate a direct causal link between the municipal action and a deprivation of federal rights); Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993) (stating that plaintiff must identify the policy at issue, connect the policy to the governmental body, and show that injuries were incurred because of the execution of that policy) (citing Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)). Plaintiff argues that the City should be held liable under § 1983 for failure to supervise, failure to train, failure to investigate or discipline, and failure to develop plans and policies to deal effectively with a long known and recognized risk of isolated misconduct during student celebrations. Defendants contend that Plaintiff has failed to present evidence sufficient to support the key elements of her claims against the City. In particular, Defendants relate the details of the extensive training that prepares officers for riot situations and of the extensive planning that is part of the CDP’s preparation for such situations. Defendants also assert that incidents that occurred after Plaintiffs injury — including other alleged constitutional violations by police on April 29, 2001, and the alleged failure to investigate or discipline — cannot" }, { "docid": "6934674", "title": "", "text": "to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983. To satisfy the policy requirements of Mo-nell, a plaintiff must “identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994) (quoting Coogan v. Wixom, 820 F.2d 170, 176 (6th Cir.1987). Under Monell, a “custom” is a legal institution that is permanent and established, but is not authorized by written law.... Before a custom can be the basis for a civil rights violation, the custom must be “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law.” Feliciano v. Cleveland, 988 F.2d 649, 655 (6th Cir.), cert. denied, — U.S. -, 114 S.Ct. 90, 126 L.Ed.2d 57 (1993) (quoting Monell, 436 U.S. at 691, 98 S.Ct. at 2036). Plaintiff has met these standards. The official policy proved at trial was the decision to follow the teachings of Captain Bolz and to adopt his philosophy in developing a response plan for critical incident management. Recognizing the need for a cohesive procedure to address one of the most crucial problems facing modern law enforcement, Grand Rapids turned to Captain Bolz to teach its officers and critique its new procedure manual. Bolz worked with the Grand Rapids Police Department for four years in formulating the response plan. In his training sessions, Bolz instructed the city’s officers that warrants were not required in critical incidents, making no distinction between the varying circumstances that could be presented. In accordance with his teachings, the procedure manual was drafted to be silent on the general warrant requirement of the Fourth Amendment. In accordance with his teachings, Grand Rapids followed the routine practice of not securing warrants during the management of critical incidents. The trouble is that this policy was illegal. The connection between the City of Grand Rapids and the policy also was demonstrated. The" }, { "docid": "16190497", "title": "", "text": "that the police officers in this case were following the Lansing Police Department’s policy when they entered the O’Donnell home and assisted in the removal of the children without a written court order. The Court further concludes that the Lansing Police Department’s policy of entering homes pursuant to verbal court orders bore the requisite causal relationship to the constitutional harms Plaintiffs suffered. For § 1983 liability to ensue under Monell, the local government’s policy or custom must be the “moving force” behind the constitutional violation. Monell, 436 U.S. at 694, 98 S.Ct. at 2038. A plaintiff must show “a direct causal link” between the municipal policy or custom and the constitutional violation. Doe v. Claiborne County, 103 F.3d 495, 508 (6th Cir.1996). In other words, a plaintiff must “show that the particular injury was incurred because of the execution” of the policy or custom. Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.1993). “This requirement is necessary to avoid de facto respondeat superior liability explicitly prohibited by Monell.” Doe, 103 F.3d at 508. The causal connection here is straightforward: the police, following departmental policy, made a warrantless, un-consented entry into the home and assisted in the seizure of the O’Donnell children where no exigent circumstances existed. Were it not for the policy of relying on verbal court orders, the entry would not have happened and none of the constitutional violations would have ensued. Accordingly, Plaintiffs’ § 1983 claims against the City of Lansing survive the City’s request for summary judgment. (5) Tort Claims Against City of Lansing Plaintiffs concede that naming the City of Lansing as a Defendant to the state law tort claims was improper because governmental immunity shields the City from those claims. Accordingly, the claims for false arrest, false imprisonment, and negligence against the City of Lansing will be dismissed. (6) Individual Capacity Claims Against Chief Alley Defendants seek summary judgment on Plaintiffs’ claims against Chief Alley in his individual (as opposed to official) capacity because, Defendants argue, Plaintiffs cannot present evidence that Chief Alley was in any way involved in this incident. In response," }, { "docid": "7653945", "title": "", "text": "prisoners—as embodied in its contract with SecureCare—led to that constitutional violation. This claim implicates the familiar principles set forth in Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court explained that municipal liability under section 1983 may only attach where the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury” complained of. Thus, Graham must prove two basic elements: (1) that a constitutional violation occurred; and (2) that the County “is responsible for that violation.” Doe v. Claiborne Cty., 103 F.3d 495, 505-06 (6th Cir.1996). Our decisions in Watkins and Weaver, discussed above, would be relevant to the first element— i.e., whether Mr. Graham suffered a deprivation of his constitutional right to adequate medical care. We need not decide that issue, however, because we find that even assuming that a constitutional violation occurred, the County cannot be held liable for it. A plaintiff asserting a section 1983 claim on the basis of a municipal custom or policy must “identify the policy, connect the policy to the [County] itself and show that the particular injury was incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir.), cert. denied, 510 U.S. 1177, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994). Graham’s claim is based upon the County’s contract with SecureCare, which gives SecureCare responsibility over the provision of medical care to prisoners in the County jail. The County concedes that this contract constitutes a municipal “policy” within the meaning of Monell. The primary issue is whether Graham has alleged sufficient facts to establish that the alleged constitutional violation happened “because of the execution of [the County’s] policy.” Id. (emphasis added). There must be “a direct causal link” between the policy and the alleged constitutional violation such that the County’s “deliberate conduct” can be deemed the “moving force” behind the violation. Waters v. City of Morristown, 242 F.3d 353, 362 (6th" }, { "docid": "6913945", "title": "", "text": "the verdict, in ruling upon a motion for a new trial based on the ground that the verdict is against the weight of the evidence, the trial court must compare the opposing proofs, weigh the evidence, and set aside the verdict if it is of the opinion that the verdict is against the clear weight of the evidence. TCP Indus., Inc. v. Uniroyal, Inc., 661 F.2d 542, 546 (6th Cir.1981). It should deny the motion if the verdict is one which could reasonably have been reached, and the verdict - should not be considered unrea sonable simply because different inferences and conclusions could have been drawn or because other results are more reasonable. Id. J.C. Wyckoff & Associates, Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir.1991); see also Strickland, 142 F.3d at 357. The motion must be considered in a light most favorable to the non-movant. Williams v. Nashville Network, 132 F.3d 1123, 1130 (6th Cir.1997). Defendant City of Lansing’s contention that the evidence against it was insufficient as a matter of law stems from the United States Supreme Court’s holding in Monell v. Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which determined that a local government may not be sued solely because of an injury inflicted by an employee but may be sued when the employee’s acts represent the execution of a government policy or custom and is the moving force for the constitutional violation. As the Sixth Circuit has said in repeating that standard, “to satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the policy to the city itself and show that the particular injury was incurred because of the execution of that policy.’ ” Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir.1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir.1987)); see also Searcy v. City of Dayton, 38 F.3d 282, 287 (6th Cir.1994). Although these standards are difficult to meet in the average case, courts have held that they are met by evidence that the" } ]

[ { "docid": "22460752", "title": "", "text": "599, 12 Sup. Ct. 62, 35 L. Ed. 870, — the Supreme Court expressly places accident on a par with fraud as a basis for such relief. In many of the cases which counsel cite, the gravamen of the bill was fraud, not accident, and in those cases the sufficiency of the allegations or of the proof of the fraud is naturally discussed at length. In the cases in which relief was denied, the ground of the denial was not that a meritorious defense was prevented by accident, rather than by fraud, but that the cases lacked one or more of the essential ele ments of a good cause of action for either fraud or accident. The indispensable elements of such a cause of action are (i) a judgment •which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. The case of Barrow v. Hunton, 99 U. S. 80, 25 L. Ed. 407, lacked the second element — the meritorious defense — and the court pointed out in that case the radical and controlling difference and the established line of demarcation between suits to enjoin the collection of judgments for errors and irregularities in the proceedings on which they are based, or for illegality or incorrectness of the judgments or decisions themselves, and suits to restrain the enforcement of judgments for new causes, such as frauds, accidents, or mistakes, that prevented meritorious defenses, of which the courts which rendered the judgments were not advised, and which they neither considered nor adjudged. It declared that suits of the former class would not, while suits of the latter class would, warrant the issue of an injunction to restrain the enforcement of the judgments; that the case then before it was, in the absence" } ]

[ { "docid": "23590425", "title": "", "text": "been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospec tive application, or (6) any other reason justifying relief from the operation of other judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken____ This rule does not limit the power of the court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or ... to set aside a judgment for fraud on the court. Because more than one year passed between the entry of the original judgment and the filing of the instant case, the plaintiff cannot seek relief under Rule 60(b)(3). However, the plaintiff argues that this action can be maintained as an independent action within the savings clause of Rule 60(b), and thus is not subject to the one year limitations period. Plaintiff asserts that Gore obtained final judgment in the original action through a preconceived scheme to use the judicial system to defraud the plaintiff. As is clear in the Advisory Committee Notes to the 1946 amendments to Rule 60(b), the term “independent action” in Rule 60(b) refers only to actions that “established doctrine” had held to be within the court’s power prior to enactment of the rules of procedures. The elements of such an action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.) cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (quoting National Surety Co. v." }, { "docid": "1427352", "title": "", "text": "or to set aside a judgment for fraud upon the court. Fed. R. Civ. P. 60(b). . An allegation that a judgment is void, see Atchison, Topeka & Santa Fe Railway v. Wells, 265 U.S. 101, 44 S.Ct. 469, 68 L.Ed. 928 (1924), or that it should not be enforced because of fraud, accident or mistake, see Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir. 1903)), may lead a court to exercise its equitable jurisdiction. See generally 7 J. Moore, Moore’s Federal Practice ¶ 60.37 (2d ed. 1982). Subsection (4) of Rule 60(b) permits relief on the ground that the judgment is void; subsection (3) for “fraud . . ., misrepresentation, or other misconduct of an adverse party”; and subsection (1) for “mistake, inadvertence, sur prise, or excusable neglect.” Fed. R. Civ. P. 60(b). . In Hadden v. Rumsey Prods., 196 F.2d 92 (2d Cir. 1952), for example, the court treated a Rule 60(b) motion alleging fraud as an independent action. The court recognized that no complaint had been filed, but held that petitioners should not be barred by the labels placed on the papers submitted to the court. It implicitly decided that issuance of a summons was not required by due process because the judgment creditor had taken action equivalent to entering a general appearance. Finally, the court noted that by seeking affirmative relief from the registration court the judgment creditor had waived any question of personal jurisdiction. See Bankers Mortgage Co. v. United States, supra, 423 F.2d at 77 n. 7 (“Where the adverse party is not prejudiced an independent action for relief may be treated as a 60(b) motion, and conversely, a 60(b) motion may be treated as the institution of an independent action.”). But cf. Taft v. Donellan Jerome, Inc., supra, 407 F.2d at 808 (“[Sjince [plaintiff] failed to exhaust his legal remedies under Rule 60(b)(4) [in the rendering court] he should not be allowed to bring" }, { "docid": "3234707", "title": "", "text": "because hindsight seems to indicate to him that his decision not to appeal was probably wrong, considering the outcome of the Keilbar case. There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from. D. Assuming arguendo plaintiff filed a Rule 60(b) motion, was the motion timely filed? Plaintiff contends that relief should be granted under Rule 60(b) in the following manner: (a) Through an independent action to relieve plaintiff from a judgment. (b) Because fraud was committed on the bankruptcy court. (c) Because of the defendants’ alleged fraud within the meaning of Rule 60(b)(3). The Court will discuss each of these contentions separately. 1. Can an independent action be filed? Rule 60(b) provides in part that this “rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or pleading”. The Eighth Circuit in National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903) outlined the elements of an independent action under Rule 60(b): (1)a judgment which ought not in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law. However, the parties may not use an independent action to relitigate issues between the parties. In Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.1970), cert. denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). Bankers Mortgage, 423 F.2d at 79, the Fifth Circuit noted: The independent action can not be made a vehicle for the relitigation of issues. Courts have consistently held that a party is precluded by res judicata from relitigation in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or" }, { "docid": "11800224", "title": "", "text": "one-year time limit on Rule 60 motions is not applicable to independent actions. Carr, 543 F.2d at 926. An independent action, also known as an original action, is a proceeding that sounds in equity and \"is available only to prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 45, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). A party bringing an independent action must show that: (1) the judgment should not, in equity and good conscience, be enforced; (2) a good defense exists; (3) fraud, accident, or mistake prevented him from obtaining the benefit of his defense; (4) the absence of fault or negligence on his part; and (5) the absence of any adequate remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.1970), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). .Apparently, good fences do not always make good neighbors, for the parties’ dispute began far back in 1992 “when the Bennetts fenced off and barricaded the road.’’ Am. Compl. at 8. The plaintiffs allege that defendant Jane Bennett “put up a fence 60 feet from their property line and through oral and in person threats, written threats by their lawyer, and ■ physical barricade claimed the road bed, about 6000 square feet, as their own to the exclusion of [the] Sieverdings, whose residential property adjoined the disputed road for a substantial length.” Id. The plaintiffs further allege that the \"Bennetts also repeatedly launched full sized aerial fireworks about 75 feet downhill from [the] Sieverdings' yard, in violation of national fire safety standard.” Id. The plaintiffs’ heated dispute with their neighbors is reminiscent of Shakespearan drama: Two households, both alike in dignity, In fair Verona, where we lay our scene, From ancient grudge break to new mutiny, Where civil blood makes civil hands unclean. William Shakespeare, Romeo and Juliet, Prologue. Fortunately, as far as the court can tell, no star-crossed lovers have yet committed suicide over this overblown dispute among neighbors. . The only defendant named in this case that was not named in the suit" }, { "docid": "11726970", "title": "", "text": "the original judgment). Delay in filing does not necessarily bar an independent action in equity. This circuit, in Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.1970), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970), set out the elements of the independent action: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. 423 F.2d at 79, (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). We reference the independent action for the sake of comprehensiveness. . A correction under Rule 60(a) can be raised sua sponte by a court in order to correct an erroneous judgment. Fed.R.Civ.P. 60(a). See also In re Timely Secretarial Service, Inc., 987 F.2d 1167, 1171 (5th Cir.1993) (court must notify the parties if it chooses to make a sua sponte motion to correct under Rule 60). . The district judge will also have to determine until what day the calculation of interest on the judgment should have been made. The government has submitted two interest amounts. The court will have to decide whether the interest is computed from the time of the issuance of the check or from the day ten days later when the check was actually sent." }, { "docid": "23590427", "title": "", "text": "State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3) or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action" }, { "docid": "18754956", "title": "", "text": "(1973). In deciding whether Holloway's allegations are sufficient for purposes of applying Heiser, however, the distinction has no determinative importance. In passing, we note that in Marshall the federal court enjoined enforcement of a state court judgment, an exercise of a federal judicial power that is very much in doubt today because of the modern interpretation of the Anti-Injunction Act, 28 U.S.C. § 2283. The Anti-Injunction Act does not, however, bar a federal court sitting in bankruptcy from enjoining a state court proceeding. See supra note 8. . Since Hazel-Atlas, other courts have contributed to the development of criteria for use in determining whether a particular judgment should be set aside on the basis of fraud. The most commonly used definition is that found in Moore’s Federal Practice: Fraud upon the court should embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication. 7 Moore, Federal Practice ¶ 60.33 at 515 (1971). See, e.g., Kerwit Medical Products, Inc. v. N. & H. Instruments, Inc., 616 F.2d 833 (5th Cir.1980). These cases typically arise from a motion submitted pursuant to Fed. Rule of Civil Procedure 60(b), which provides: \"This rule does not limit the power of the court to entertain an independent action to ... set aside a judgment for fraud upon the court.” The comments to Rule 60 state that the rule leaves unaffected the court’s equitable power to set aside a judgment on the basis of fraud. These cases therefore use the same equitable power described in Heiser. As Moore's definition indicates, the fraud necessary to set aside a judgment must be \"most egregious conduct.” Williams v. Board of Regents, 90 F.R.D. 140 (M.D.Ga.1981) and most courts have stated that this conduct generally includes bribery of a judge, employment of counsel to influence the court, or fabrication of evidence by a party in which an attorney has been implicated. See, e.g., Williams" }, { "docid": "23590428", "title": "", "text": "or to an independent action. 7 Moore’s Federal Practice It 60.33. Given the absence of a rigid time limitation for bringing independent action, and the “deep-rooted federal policy of preserving the finality of judgments, fraud upon the court cannot necessarily be read to embrace any conduct of which the court disapproves.” Williams, 90 F.R.D. at 142. Plaintiff relies on the decision in Hazel-Atlas Glass Co. v. Hartford Empire Co., 322 U.S. 238, 64 S.Ct. 997, 88 L.Ed. 1250 (Í944), to' support its argument that it should be permitted to maintain an independent action for relief in the instant case. In Hazel-Atlas the Supreme Court granted relief upon its finding of a deliberately planned and executed scheme to defraud the Patent Office and the Circuit Court of Appeals. The court found that Hartford defrauded the Patent Office by helping its application for a patent through use of an article written and caused to be published by some of its attorneys and officials under the name of a supposedly disinterested expert. In the subsequent patent infringement action Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement in Gore’s perjury and no evidence to suggest that the normal, impartial operation of the court which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25" }, { "docid": "22884254", "title": "", "text": "denial of the motion, because the plaintiff could not have defeated the defendant’s motion for summary judgment on the basis of the amended complaint, if allowed. The amended complaint would have essentially alleged that Farmland conspired with the presiding federal judge, the insured Commodity, certain Addington Grain employees, and certain grain elevator inspectors, among others, to cause Addington to bear the burden created by the grain shortage in the Addington Grain elevators. The allegations of the amended complaint do not suggest that Farmland itself participated in producing the shortage of grain. Farmland’s participation in the alleged conspiracy is that it filed the suit to recover against Addington on his personal guaranty of any shortage, knowing that the shortage in 1965 was due to embezzlement and that Commodity (Farmland’s insured) was a member of the conspiracy — a conspiracy that Addington allegedly could have proved if he had not been denied some Santa Fe Railroad records (denied by the Santa Fe railroad and the failure of discovery efforts by him on his behalf). Farmland is charged with joining in the fraud by using the same perjured testimony (that had previously been accepted as credible in the previous state and federal proceedings definitively decided adversely to Addington), and by knowing that Addington had moved to recuse the Kansas federal judge as biased. The proposed amendment was, in effect, an attempt by Addington to assert an independent action for relief from the Kansas federal district court judgment on the basis of fraud or of a “fraud on the court”. In Bankers Mortgage Company v. United States, 423 F.2d 73 (5th Cir. 1970), cert. denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970), this circuit set forth essential elements of an independent action to obtain relief from a prior judgment: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment' from obtaining the benefit of his defense; (4) the absence" }, { "docid": "690161", "title": "", "text": "party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. . The Fifth Circuit clarified the two distinct procedures for obtaining relief under Rule 60(b) in Bankers Mortgage Co. v. United States, 423 F.2d 73, 77-79 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). The first is a motion for relief, which must be filed in the district court and in the action in which the original judgment was entered. The motion is considered ancillary to or a continuation of the original suit and is based on a court’s supervisory power. The second procedure is an independent action which is founded upon an independent and substantive equitable jurisdiction. The essential elements of an independent action are: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law. Id. at 79. Where an adverse party is not prejudiced an independent action for relief may be treated as a 60(b) motion, and, conversely, a 60(b) motion may be treated as the institution of an independent action. Id. at 77 n.7. It should further be noted that an independent action is not limited by the time requirements or the grounds of relief which are specified in Rule 60(b) with respect to motions for relief from final judgment. Id. at 78. . While the basis of this action has assumedly concerned a dispute" }, { "docid": "23590426", "title": "", "text": "Plaintiff asserts that Gore obtained final judgment in the original action through a preconceived scheme to use the judicial system to defraud the plaintiff. As is clear in the Advisory Committee Notes to the 1946 amendments to Rule 60(b), the term “independent action” in Rule 60(b) refers only to actions that “established doctrine” had held to be within the court’s power prior to enactment of the rules of procedures. The elements of such an action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.) cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970) (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). The court finds that the perjury by defendant Gore does not constitute fraud upon the court. Plaintiff’s complaint thus fails to meet the requirements of an independent action. Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356 (4th Cir.1982); Kermit Medical Products v. N & H Instruments, 616 F.2d 833, 837 (5th Cir.1980); Williams v. Bd. of Regents, 90 F.R.D. 140 (M.D.Ga.1981). These courts relied upon the following test in determining what constitutes fraud upon the court. “Fraud upon the court” should, we believe, embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication, and relief should be denied in the absence of such conduct. Fraud inter parties, without more, should not be fraud upon the court, but redress should be left to a motion under Rule 60(b)(3)" }, { "docid": "2486847", "title": "", "text": "Defendants were also required to furnish plaintiff with a statement of assets, of no seeming interest if they were not to be personally accountable. Neither circumstance, however, alerted them to the true nature of the enterprise. . Such little authority as we find is generally to like effect. See, e.g., Law Offices of Jerris Leonard, P.C. v. Mideast Systems, Ltd., 111 F.R.D. 359 (D.D.C.1986); Technical Air Products, Inc. v. Sheridan-Gray, Inc., 103 Ariz. 450, 445 P.2d 426 (1968); Heffern v. First Interstate Bank, 99 N.M. 531, 660 P.2d 621 (Ct.App.1983). . We note that Rule 13(a) was amended in 1946 to foreclose the “undesirable possibility” that a defendant could avoid the consequences of the rule simply by initiating independent action in another court that included what would otherwise be compulsory counterclaims. See Fed.R.Civ.P. 13(a) Advisory Committee’s note (1946 amendment); Law Offices of Jerris Leonard, P.C. v. Mideast Systems, Ltd., 111 F.R.D. 359, 362 (D.D.C.1986). Exempting default judgments would provide defendants with a similar opportunity to divide up the litigation and undermine plaintiffs choice of forum. Cf. Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (1960). . This holding makes it unnecessary to consider whether defendants’ claims would be barred in any event under principles of res judicata. Cf. Martino, ante, 598 F.2d at 1083-86. . We find utterly without merit defendant’s other allegation — that deficiencies in the content of plaintiffs motion and related filings warrant a reversal of summary judgment. . The \"essential elements” of such an action are “(1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense ...; (3) fraud,, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law.” Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.1970) (quoting National Surety Co. v. State Bank, 120 Fed. 593, 599 (8th Cir.1903)). . Dr. Jackson asserted by affidavit that he learned in \"late September”" }, { "docid": "18764515", "title": "", "text": "subjects of conversations dealing with mitigating circumstances? Q Have you read the transcript, Dr. Carrera? A Yes, I have. Q Did you read it in mind with the point of trying to find out whether or not you would disagree or find fault or error with anything that was said? A Yes, sir. Q Did you take notes for that purpose to make sure that you would pick apart anything that you could find that you would definitely would say was wrong? A Yes, sir. Q Did you find anything in that transcript, sir, that you deny, disagree or refute Mr. Bernstein said in that testimony dealing with his meetings with you were the subject of his conversations dealing with mitigating circumstances? A No, I don’t have any disagreement about what was in the transcript. Q If Mr. Bernstein said that there was a meeting at your office and that there were other such meetings in the hallways and/or his office where you discussed mitigating factors, can you swear to the Court, sir, today, that that is not a fact? A I cannot swear to that. Q Did you mean to say that in your affidavit? A Did I mean to say? Q That Mr. Bernstein was lying? A No, I didn’t mean to say that. . Booker’s action is based on the \"savings clause” of Fed.R.Civ.P. 60(b) which reads in part: \"[t]his rule does not limit the power of a court to entertain an independent action ... to set aside a judgment for fraud upon the court.” Thus an independent action for relief can be maintained because of \"fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense.” Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). The jurisdiction of the district court was ancillary to the two previous petitions that Booker seeks to reopen or set aside. Pacific Railroad of Missouri v. Missouri Pacific Railway Co., 111 U.S. 505, 522, 4 S.Ct. 583, 592, 28" }, { "docid": "17348829", "title": "", "text": "subsection (6) is not available to a movant where ... the relief sought would have been, if not for the Rule’s time limits, within the coverage of another of the subsections of the Rule.” Kerwit Medical Products, Inc. v. N & H Instruments, Inc., 616 F.2d 833, 836 n. 8 (5th Cir.1980). See also, William Skillings & Associates v. Cunard Transp. Ltd., 594 F.2d 1078 (5th Cir.1979). The district court correctly found that the plaintiffs’ motion came within the coverage of Rule 60(b)(3), and thus relief under Rule 60(b)(6) is unavailable to plaintiffs. Plaintiffs attempt to characterize the defendants’ conduct as an “attack upon the judicial machinery” amounting to a fraud on the court. “Fraud upon the court” is grounds for relief under the savings clause of Rule 60(b) and is distinguishable from the “fraud ... misrepresentation, or other misconduct” under subsection (b)(3). Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978). However, 60(b) relief based on “fraud upon the court” is reserved for only the most egregious misconduct, and requires a showing of “an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” Id. at 1338 (quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir.1960)). The narrow concept should “embrace only the species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kerwit Medical Products, 616 F.2d at 837 (quoting 7 Moore, Federal Practice ¶ 60.33 at 511 (1971 ed.)). Less egregious misconduct comes within the scope of Rule 60(b)(3). Id.; Rozier v. Ford Motor Co., 573 F.2d at 1332. The district court construed the plaintiffs’ allegations as follows: In short, movants object to the defendants’ “state of the art” defense because of the existence of various studies and reports allegedly reporting the dangers of asbestos as far back as the 1930’s and because of the contrary position taken by some defendants in other lawsuits that" }, { "docid": "11726969", "title": "", "text": "808 F.2d 1105, 1108 (5th Cir.1987); see also Ellison v. Conoco Inc., 950 F.2d 1196 (5th Cir.1992) (approving of use of same document for opinion and ruling to achieve finality under Rule 58). . Although coram nobis is not an action available after the enactment of Rule 60(b), we note that Congress provided that the rule \"does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding.\" Fed.R.Civ.P. 60(b). Rule 60(b) thus preserves the rights of parties to bring independent actions in equity to reform judgments. For these independent actions, \"[tjhere is no time limit on when [they] may be brought.” Narramore v. United States, 852 F.2d 485, 492-93 (9th Cir.1988) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure § 2868 at 241 (1973)); see also West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 213 F.2d 702 (5th Cir.1954) (granting relief on a judgment using the court’s independent action powers nine years after the entry of the original judgment). Delay in filing does not necessarily bar an independent action in equity. This circuit, in Bankers Mortgage Co. v. United States, 423 F.2d 73 (5th Cir.1970), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970), set out the elements of the independent action: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. 423 F.2d at 79, (quoting National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). We reference the independent action for the sake of comprehensiveness. . A correction under Rule 60(a) can be raised sua sponte by a court in order to correct an erroneous judgment. Fed.R.Civ.P. 60(a). See also In re" }, { "docid": "3234708", "title": "", "text": "60(b): (1)a judgment which ought not in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law. However, the parties may not use an independent action to relitigate issues between the parties. In Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.1970), cert. denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). Bankers Mortgage, 423 F.2d at 79, the Fifth Circuit noted: The independent action can not be made a vehicle for the relitigation of issues. Courts have consistently held that a party is precluded by res judicata from relitigation in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or defense in that action. An independent action is also subject to the defense of laches. Because plaintiff had a remedy under Rule 60(b)(3) and was not free of fault or negligence, the Court finds the plaintiff does not have the right to bring an independent action. 2. Was there fraud on the court? There is no time limitation to file a motion to vacate a judgment based on fraud on the court. However, a motion alleging simple fraud under Rule 60(b)(3) must be filed within one year. Thus, the issue to be determined by the Court is whether the defendants’ actions constituted fraud on the bankruptcy court or simple fraud within the scope of Rule 60(b)(3). Under facts far more serious than those alleged in this case, the Seventh Circuit in Met-L-Wood Corp. v. Pipin, refused to find fraud on the court despite the alleged improper conduct on the part of the bankruptcy judge and attorneys. The court in Met-L-Wood stated: If a judgment is procured by fraud, it can be set aside under Rule" }, { "docid": "14997228", "title": "", "text": "also Griffin v. Fed. Deposit Ins. Corp., 831 F.2d 799, 802 (8th Cir. 1987) (describing the savings clause of Rule 60(b) as providing for an independent cause of action similar to the cause of action described in Nat’l Surety). In Nat’l Surety, we stated: The indispensable elements of such a cause of action are (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. Nat’l Surety Co., 120 F. at 599. We have subsequently emphasized that fraud on the court is distinct from mere fraud upon a party. See United States v. Smiley, 553 F.3d 1137, 1144 (8th Cir.2009) (“Fraud on the court which justifies vacating a judgment is narrowly defined as ‘fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.’ ”) (quoting Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985)); Heim v. Comm’r, 872 F.2d 245, 249 (8th Cir.1989) (John R. Gibson, J., writing separately) (“The cases that recognize such a theory, however, have been careful to differentiate fraud on the court from fraud against individuals.”). Further, relief is only available where it would be “manifestly unconscionable” to allow the judgment to stand. Griffin, 831 F.2d at 802; Middleton v. McDonald, 388 F.3d 614, 618 (8th Cir.2004). Relief through an independent equitable action alleging fraud on the court, then, is a truly extraordinary form of relief. Although this appeal is from a grant of summary judgment, our review is not de novo. Rather, in this equitable action for relief from a prior judgment, we review only for a clear abuse of the district court’s considerable discretion. See Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir.1998) (applying the" }, { "docid": "16731569", "title": "", "text": "an independent action to relieve a party from a judgment, ... or to set aside a judgment for fraud upon the court.’ According to Wright and Miller, ‘the reference to ‘independent action’ in the saving clause is to what had been historically known simply as an independent action in equity to obtain relief from a judgment.’ 11 C. Wright & A. Miller, Federal Practice & Procedure § 2868, at 237-38 (1973). Barrett v. Sec’y of Health & Human Servs., 840 F.2d 1259, 1262-63 (6th Cir.1987). Nonetheless, “[w]here the adverse party is not prejudiced[,] an independent action for relief may be treated as a 60(b) motion, and conversely, a 60(b) motion may be treated as the institution of an independent action.” Bankers Mortg. Co. v. United States, 423 F.2d 73, 81 n. 7 (5th Cir.1970); accord 11 Wright, Miller & Kane, Federal Practice & Procedure § 2868 n. 30, at 405 (1995). Because this is an equitable action, we would ordinarily review the district court’s decision for an abuse of discretion. See Barrett, 840 F.2d at 1263. In this case, however, the district court rested its decision on its perceived lack of discretion and never actually addressed the elements, limitations, or requirements of an independent action. The “indisputable elements” of an independent action are: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of the defendant; and (5) the absence of any adequate remedy at law. Barrett, 840 F.2d at 1263 (citing 11 C. Wright & A. Miller, Federal Practice & Procedure § 2868, at 238 (1973), and National Surety Co. v. State Bank, 120 F. 593, 599 (8th Cir.1903)). Moreover, an independent action is “available only to prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998); accord Pickford" }, { "docid": "11800223", "title": "", "text": "that date. Def. American Bar Association’s (\"ABA”) Mot. to Dismiss, Exs. 1 & 2. Pursuant to Rule 60(b)(3), the plaintiffs' action is time barred because the judgments the plaintiffs seek to set aside were entered more than one year ago. Fed.R.Civ.P. 60(b); Carr v. Dist. of Columbia, 543 F.2d 917, 926, n. 67 (D.C.Cir.1976). The plaintiffs' amended reply to the American Bar Association's (\"ABA”) motion to dismiss, however, states that they bring an independent action, rather than a motion for relief from judgment under Rule 60(b)(3). Pis.' Supplemental Opp’n to Defs.' Mots, to Dismiss at 9. Therefore, the court assumes that the plaintiffs intended to bring an independent action. Richardson v. United States, 193 F.3d 545, 548-49 (D.C.Cir.1999) (holding that courts must construe pro se filings liberally, and that the district court should have read all of the pro se plaintiff's filings together before dismissing the case for lack of subject-matter jurisdiction, but also noting that a court need not \"cull through every filing of a pro se litigant to preserve a defective complaint”). The one-year time limit on Rule 60 motions is not applicable to independent actions. Carr, 543 F.2d at 926. An independent action, also known as an original action, is a proceeding that sounds in equity and \"is available only to prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 45, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). A party bringing an independent action must show that: (1) the judgment should not, in equity and good conscience, be enforced; (2) a good defense exists; (3) fraud, accident, or mistake prevented him from obtaining the benefit of his defense; (4) the absence of fault or negligence on his part; and (5) the absence of any adequate remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir.1970), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970). .Apparently, good fences do not always make good neighbors, for the parties’ dispute began far back in 1992 “when the Bennetts fenced off and barricaded the road.’’ Am. Compl. at" }, { "docid": "22884255", "title": "", "text": "with joining in the fraud by using the same perjured testimony (that had previously been accepted as credible in the previous state and federal proceedings definitively decided adversely to Addington), and by knowing that Addington had moved to recuse the Kansas federal judge as biased. The proposed amendment was, in effect, an attempt by Addington to assert an independent action for relief from the Kansas federal district court judgment on the basis of fraud or of a “fraud on the court”. In Bankers Mortgage Company v. United States, 423 F.2d 73 (5th Cir. 1970), cert. denied 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 793 (1970), this circuit set forth essential elements of an independent action to obtain relief from a prior judgment: (1) a judgment which ought not, in equity and good conscience, to be enforced; (2) a good defense to the alleged cause of action on which the judgment is founded; (3) fraud, accident, or mistake which prevented the defendant in the judgment' from obtaining the benefit of his defense; (4) the absence of fault or negligence on the part of defendant; and (5) the absence of any adequate remedy at law. Id. at 79, quoting from National Surety Company v. State Bank, 120 F. 593, 599 (8th Cir. 1903). As stated in Bankers Mortgage, “The independent action cannot be made a basis for the relitigation of issues” adjudicated by the judgment now sought to be annulled. 423 F.2d at 79. We do not find that Addington’s proposed amended allegations satisfy the requirements, essential to an independent action to obtain relief from a prior judgment on the ground that it was fraudulently obtained. Addington’s charge of bias on the part of the federal judge could have been remedied on appeal. The allegation that Farmland used perjured testimony in support of its case is an attempt to relitigate the credibility of the witnesses whose testimony was accepted (against a similar attack as now made) in the proceeding that resulted in the prior judgment. Finally, whether or not Addington was responsible for the Commodity grain shortage, he was ultimately responsible" } ]

[ { "docid": "6107516", "title": "", "text": "this record, however, we can affirmatively conclude that Meyers’ delay in filing suit was not unreasonable. The delay in this case was shy of the six years necessary for the presumption of laches to apply. See Aukerman, 960 F.2d at 1028, 22 USPQ2d at 1325. While we have affirmed findings of unreasonableness for delays of less than six years, the facts of those cases are distinguishable. See Brooks Shoe, 912 F.2d at 1462-63, 16 USPQ2d at 1057-58. For example, in MCV, Inc. v. King-Seeley Thermos Co., 870 F.2d 1568, 1571-72, 10 USPQ2d 1287, 1290-91 (Fed.Cir.1989), the plaintiff waited four years to bring a claim for co-inventorship and co-ownership after expressly assenting to not being named co-inventor. Similarly, in Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1550, 221 USPQ 1, 10 (Fed.Cir.1984), the plaintiff waited three years before amending its infringement complaint to name an additional product after it had notice of that product. Meyers did not take an express position and then attempt to alter that position at a later time. Meyers did not expressly threaten litigation and then delay bringing suit for several years. Meyers offered evidence of reasons (negotiating with his attorney, negotiating with other parties for licenses) for his delay. Under these facts, the district court’s conclusion that Meyers’ delay was unreasonable is erroneous. The defendants argue that they suffered economic prejudice and two kinds of evi-dentiary prejudice (loss of key witnesses and loss of documentary evidence). We are unpersuaded, however, that defendants have established that they were prejudiced by the delay. Asics, ATC and Hyde all assert that since Meyers’ initial contacts with them, they have spent substantial amounts of money to design, develop and promote many new and different shoe models that Meyers now alleges infringe his patents. There is no dispute that defendants have suffered an economic detriment, the question is whether this prejudice resulted from Meyers’ delay. None of the defendants submitted evidence that they curtailed design and development of shoes in response to Meyers’ suit once it was actually filed. Moreover, the sales data submitted by the defendants to support" } ]

[ { "docid": "12166230", "title": "", "text": "filing suit.” Hall, 93 F.3d at 1554. Finally, Serdarevic does not explain — and we do not understand- — why her ongoing efforts to license her inventor-ship rights would prevent her from bringing suit to correct inventorship. If anything, her interest in licensing her claimed invention should have provided a strong incentive for her to correct inventorship as soon as possible. Even taken together, Serdarevic’s excuses are insufficient to rebut the presumption that her eight-year delay was unreasonable. There is no basis for us to conclude that the district court abused its discretion when it concluded that Serdarevic’s delay was unreasonable. Nor did the district court abuse its discretion when it concluded that Serdarevic failed to rebut the presumption of prejudice: “Material prejudice ... may be either economic or evidentiary. Evidentiary, or ‘defense’ prejudice, may arise by reason of a defendant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events, thereby undermining the court’s ability to judge the facts.... Economic prejudice may arise where a defendant and possibly others will suffer the loss of monetary investments or incur damages which likely would have been prevented by earlier suit.” Aukerman, 960 F.2d at 1033 (citations omitted). The district court held that Ser-darevic had failed to meet her burden to rebut the presumption of evidentiary prejudice, because three witnesses with knowledge of Serdarevic’s inventorship claim— Massin, Maurice, and Berson — all died during the period of her delay, and because of the “cumulative and inherent prejudice from the dimming memories of all participants, including Serdarevic herself.” Serdarevic, *1. Because it concluded that Serdarevic had failed to meet her burden of production on evidentiary prejudice, the district court did not reach the issue of economic prejudice. Serdarevic argues that the district court erred in finding evidentiary prejudice, because the three deceased witnesses were not material. Specifically, she claims that the witnesses would only confirm her in-ventorship claim, that both parties had sufficient documentary evidence to decide the issue of inventorship without" }, { "docid": "4822853", "title": "", "text": "clock accordingly cannot begin to run prior to issuance. Here, because Hor and Meng filed suit within six years of the issuance of the '866 and '418 patents, they contend that a presumption of laches should not apply. Chu, in contrast, maintains that the laches period can begin pre-patent issuance, where, as here, the purported inventors knew or should have known of the potential inventorship dispute before the patent issued. We agree with Hor and Meng. Section 256 creates a private cause of action to correct inventorship in an issued patent: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent in which such error occurred if it can be corrected as provided in this section. The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly. 35 U.S.C. § 256 (2006) (emphasis added). In Aukerman, this court applied the six-year presumption of laches to a patentee’s claim of infringement, holding that the laches clock did not start to run — at the earliest — until the patent issued: The period of delay is measured from the time the plaintiff knew or reasonably should have known of the defendant’s alleged infringing activities to the date of suit. However, the period does not begin prior to issuance of the patent. 960 F.2d at 1032 (emphases added). Advanced Cardiovascular adopted Aukerman’s six-year laches presumption for § 256 correction of inventorship claims and held that the laches period began when “the omitted inventor knew or should have known of the issuance of the patent.” 988 F.2d at 1163." }, { "docid": "4822859", "title": "", "text": "inventorship disputes certainly is a desirable goal, there may be circumstances in which it would be inefficient to require an omitted inventor to initiate an inventorship dispute while the application is still pending. Throughout the back-and-forth negotiation between the patentee and the PTO examiner, the original claims are routinely narrowed or even cancelled. Thus, in many cases, an omitted inventor may not know whether he or she has a cognizable inventorship claim until the examination concludes and the patent finally issues. Accordingly, for these reasons, we continue to apply the general rule set forth in Advanced Cardiovascular and hold that the laches period for a § 256 correction of inventorship claim begins to run when “the omitted inventor knew or should have known of the issuance of the patent,” regardless of whether the omitted inventor knew or should have known of the omitted inventorship while the patent application was pending before the PTO. Here, Hor and Meng filed their claims within six years of the issuance of the '866 and '418 patents; the district court, therefore, legally erred in finding that a presumption of laches attached to these claims. The district court’s judgment in favor of Chu based on the affirmative defense of laches consequently is reversed. B. Unclean Hands Doctrine Under the unclean hands doctrine, “a [plaintiff] may be able to preclude application of the laches defense with proof that the [defendant] was itself guilty of misdeeds towards the [plaintiff].” Aukerman, 960 F.2d at 1038. “[I]n the context of an inventorship action, a plaintiff relying on the unclean hands doctrine to defeat a defense of laches must show not only that the defendant engaged in misconduct, but moreover that the defendant’s misconduct was responsible for the plaintiffs delay in bringing suit.” Serdarevic v. Advanced Med. Optics, Inc., 532 F.3d 1352, 1361 (Fed.Cir.2008). Here, Meng appeals the district court’s judgment in favor of Chu with respect to her unclean hands defense. According to Meng, unclean hands bars Chu’s laches defense because Chu’s attorney, Charles Cox, allegedly failed to inform Meng that her former co-worker, M.K. Wu, placed Meng’s inventorship of" }, { "docid": "3238731", "title": "", "text": "issuance of the relevant patent. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1163 (Fed.Cir.1993); Serdarevic, 532 F.3d at 1358. This presumption of laches may be rebutted if the plaintiff “offer[s] evidence to show an excuse for the delay or that the delay was reasonable” or by offering “evidence sufficient to place the matters of defense prejudice and economic prejudice genuinely in issue.” Aukerman, 960 F.2d at 1038. Here, the district court concluded at the summary judgment stage that Mr. Lismont’s inventorship claim was barred by laches. We review the grant of summary judgment under the law of the regional circuit. Charles Mach. Works, Inc. v. Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed.Cir.2013). The Fourth Circuit generally reviews the grant or denial of summary judgment de novo. See Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.1991). Summary judgment is appropriate when “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). The issue of laches, however, “is committed to the sound discretion of the district court.” Aukerman, 960 F.2d at 1032. Because the factors underlying a laches determination — unreasonable delay and prejudice — are factual in nature, genuine issues of material fact as to these factors will preclude summary judgment in favor of the defendant. For this reason, “[w]hen reviewing a laches decision rendered on.summary judgment, this court reviews for an abuse of discretion unless genuine issues of material fact preclude summary judgment.” Pei-Herng Hor v. Ching-Wu Chu, 699 F.3d 1331, 1334 (Fed.Cir.2012). If the presumption of laches attaches, a plaintiff 'may defeat summary judgment by “raising] a genuine dispute as to either delay or prejudice.” Hemstreet v. Comput. Entry Sys. Corp., 972 F.2d 1290, 1293 (Fed.Cir.1992). If the plaintiff makes such a showing, the presumption dissolves and the defendant is then “put to its proof on both factors” and “must affirmatively prove (1) unreasonable and inexcusable delay and (2) prejudice resulting from that delay.” Id. If, however, we agree with the district court that there are no" }, { "docid": "8936837", "title": "", "text": "loss of records, the death of a witness, or the unreliability of memories of long past events, thereby undermining the court’s ability to judge the facts. Economic prejudice may arise where a defendant and possibly others will suffer the loss of monetary investments or incur damages which likely would have been prevented by earlier suit. Aukerman, 960 F.2d at 1033, 22 U.S.P.Q.2d at 1328-29 (citations and paragraphing omitted); see also Cornetta, 851 F.2d at 1378. When raising the laches defense in the summary judgment context, the defendant also must establish that there was no genuine issue of material fact about the delay or the prejudice. See Gasser Chair, 60 F.3d at 773, 34 U.S.P.Q.2d at 1824. A delay of more than six years raises a presumption that it is unreasonable, inexcusable, and prejudicial. See Aukerman, 960 F.2d at 1035-36, 22 U.S.P.Q.2d at 1331. This presumption shifts to the patentee the burden of producing evidence, which if believed, would show that either the patentee’s delay was reasonable or excusable under the circumstances or the defendant suffered neither economic nor evidentiary prejudice. Whenever the presumption arises, including in the summary judgment context, the patentee’s evidence must be sufficient to raise a genuine issue of material fact about either the excuse for or reasonableness of the delay, or the existence of the prejudice. See id. at 1037-38, 960 F.2d 1020, 22 U.S.P.Q.2d at 1332-33. The period of delay begins at the time the patentee has actual or constructive knowledge of the defendant’s potentially infringing activities. See Eastman Kodak Co. v. Goodyear Tire & Rubber Co., 114 F.3d 1547, 1559, 42 U.S.P.Q.2d 1737, 1745 (Fed. Cir.1997) (“[D]elay begins when the plaintiff knew, or in the exercise of reasonable diligence should have known, of the defendant’s allegedly infringing activity.”); Aukerman, 960 F.2d at 1032, 22 U.S.P.Q.2d at 1328. The availability of delay based on constructive knowledge of the alleged infringer’s activities imposes on patentees the duty to police their rights. “[T]he law is well settled that where the question of laches is in issue the plaintiff is chargeable with such knowledge as he might have" }, { "docid": "8463630", "title": "", "text": "delay. Marvell overreads Serdarevic. The plaintiff in Serdarevic made vague allegations of misconduct, claiming “that the defendants’ ‘particularly egregious conduct’ was the omission of Serdarevic as a co-inventor.” Id. (citation omitted). We concluded that those allegations did not rise to the level of particularly egregious conduct that would defeat an otherwise-applicable laches defense. We explained that, in previous disputes about inventor-ship, courts had found a defendant’s misconduct to be particularly egregious when it contributed in some substantial way to the plaintiffs delay. We rejected the suggestion that any misconduct, including “the very same conduct that forms the basis for [plaintiffs] inventorship claims,” sufficed to weigh against laches. Id. at 1361-62. “[I]n the context of an inventorship action,” we explained, a plaintiff must go beyond bare allegations of such conduct and show “that the defendant’s misconduct was responsible for the plaintiffs delay in bringing suit.” Id. at 1361. The holding of Serdarevic, keyed to the inventorship context, does not undermine the district court’s rejection of laches in this case, based on its well-reasoned conclusion that Marvell’s blatant and prolonged copying of CMU’s inventions met the standard of particularly egregious conduct. Serdarevic did not involve copying, let alone egregious copying, and we did not hold that such copying, to defeat laches, must have caused the unreasonable delay. Nor does any other precedent cited by Marvell restrict the relevance of copying. Indeed, the en banc court in Aukerman specifically instructed district courts to consider such copying, and it did so without requiring that the relevant copying have caused the delay: “Conscious copying may be such a factor weighing against the defendant_” 960 F.2d at 1033; see also Gasser Chair Co. v. Infanti Chair Mfg. Corp., 60 F.3d 770, 775 (Fed.Cir.1995) (“[T]he district court erred in not considering that Infanti’s copying of Gasser’s chairs could be egregious conduct.”). See also McIntire v. Pryor, 173 U.S. 38, 53-55, 19 S.Ct. 352, 43 L.Ed. 606 (1899) (discussing long history of barring laches where defendant committed fraud, even if fraud not responsible for plaintiffs delay). That approach is consistent with the equitable nature of the laches determination," }, { "docid": "5710267", "title": "", "text": "challenge its confidentiality designation. (Tr. at 928:19-24.) Ms. Lans also admitted that she would have understood the connection between these patents and the LPS-Flex Fixed and Mobile implants. (Tr. at 956:21-958:1.) Based on the foregoing and on Indiana law, the court concludes that Dr. Scott released his claim because he and his attorney knew or reasonably could have known that he had a correction of inventorship claim. See Samuel E. Pentecost Constr. Co. v. O’Donnell, 112 Ind.App. 47, 39 N.E.2d 812, 818 (1942) (holding that a claim “could reasonably be known” when it “could have [been] learned”). E. Laches Zimmer claims that the plaintiffs’ correction of inventorship claims are barred by laches because the doctors (1) delayed filing the suit for an unreasonable and inexcusable length of time from the time they knew or should have known of their claims against Zimmer, and (2) the delay prejudiced or injured Zimmer. Serdarevic v. Advanced Med. Optics, Inc., 532 F.3d 1352, 1358, 1360 (Fed.Cir.2008). “A delay of more than six years after the omitted inventor knew or should have known of the issuance of the patent will produce a rebuttable presumption of laches.” Adv. Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157, 1161 (Fed.Cir.1993). Zimmer may establish its laches defense by a preponderance of the evidence. Hor v. Chu, 765 F.Supp.2d 903, 913 (S.D.Tex.2011). For the reasons stated in the previous Section, the court concludes that Dr. Scott and Dr. Scuderi knew or should have known of the issuance of the patents by 1997, or by 2001. Therefore, the court finds that the rebuttable presumption of laches applies to the plaintiffs’ correction of inventorship claims. Serdarevic, 532 F.3d at 1358. The court further finds, however, that the plaintiffs’ have rebutted the presumption of laches by showing that Zimmer has not suffered any material prejudice that could be attributable to the delay in bringing the suit. Hemstreet v. Com. Entry Sys. Corp., 972 F.2d 1290, 1293-94 (Fed.Cir.1992). “Material prejudice ... may be either economic or evidentiary. Evidentiary, or ‘defense’ prejudice, may arise by reason of a defendant’s inability to present" }, { "docid": "3238734", "title": "", "text": "by February 12, 2001, that Binzel-Germany and/or Mr. Sattler had already filed the application that eventually issued as the '406 patent. Because Mr. Lismont knew of the application before the '406 patent issued, the district court concluded that the laches clock started to run when the '406 patent issued on August 6, 2002. See Pei-Hemg Hor, 699 F.3d at 1335 (“[T]he laches clock [can]not start to run— at the earliest — until the patent issue[s].”). More than ten years later, on October 31, 2012, Mr. Lismont initiated the present action. Given that this delay exceeded six years, the district court found that the rebuttable presumption of laches attached. Serdarevic, 532 F.3d at 1358 (“ ‘A delay of more than six years after the omitted inventor knew or should' have known of the issuance of the patent will produce a rebuttable presumption of laches.’ ” (quoting Advanced Cardiovascular Sys., 988 F.2d at 1163)). Mr. Lismont argues that he did not delay in initiating the underlying action because he had been diligently seeking to vindicate his inventorship rights in German and European courts. Mr. Lismont further asserts that he specifically sought resolution of the '406 patent inventorship issue in the Second German Litigation when he requested “worldwide damages, including in the U.S., and a worldwide declaration of liability, including in the U.S.” Appellant Br. 25. Thus, according to Mr. Lismont, the parties have been litigating inventorship of the '406 patent in Germany since he filed the Second German Litigation in 2002 and the presumption of laches is therefore inappropriate. We disagree. The relevant inquiry for the laches presumption is whether more than six years passed between the time when the inventor, knew or should have known of the subject patent and the time the inventor initiated litigation. See Auk-erman, 960 F.2d at 1034. As the district court correctly recognized, Mr. Lismont was aware that Binzel-Germany had filed a U.S. patent application covering the mánufacturing method he allegedly invented before the '406 patent issued. Accordingly, to avoid the imposition of the rebut-table laches presumption, Mr. Lismont should have filed his United States inven-torship" }, { "docid": "4822851", "title": "", "text": "claims and that neither Hor nor Meng sufficiently rebutted that presumption. Id. at 918-20. The district court additionally entered judgment in favor of Chu on Hor’s and Meng’s unclean hands defense. Id. at 920-22. In the alternative, the district court sua sponte determined that the inventorship claims were barred by equitable estoppel. Hor and Meng have appealed, and we have jurisdiction under 28 U.S.C. § 1295(a). II. Discussion On appeal, Hor and Meng challenge the district court’s finding that their inventor-ship claims were barred either by laches or, alternatively, by equitable estoppel. Additionally, Meng appeals the district court’s entry of judgment in favor of Chu on Meng’s unclean hands defense. We address each issue in turn. A. Laches To prevail on a defense of laches, a defendant must establish that (1) the plaintiffs delay in filing a suit was “unreasonable and inexcusable,” and (2) the defendant suffered “material prejudice attributable to the delay.” A.C. Aukerman v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed.Cir.1992). For inventorship claims under § 256, a delay of six years after a claim accrues creates a rebuttable presumption of laches. Advanced Cardiovascular Sys. v. SciMed Life Sys., 988 F.2d 1157, 1163 (Fed.Cir.1993). When reviewing a laches decision rendered on summary judgment, this court reviews for an abuse of discretion unless genuine issues of material fact preclude summary judgment. Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1349 (Fed.Cir.2009) (“[I]f genuine issues of material fact preclude summary judgment of laches, ‘we need not apply [the abuse of discretion] standard[ ] of review that generally applies to laches.” (quoting Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed.Cir.1998))) (second and third alterations in original); see also Aukerman, 960 F.2d at 1039 (“[T]he standard of review of the conclusion of laches is abuse of discretion.”). On appeal, Hor and Meng argue that the district court erred in finding that their inventorship claims accrued before the '866 and '418 patents issued. According to Hor and Meng, because a 35 U.S.C. § 256 cause of action does not arise until the patent issues, the laches" }, { "docid": "4067210", "title": "", "text": "the doctrine of equivalents. Sony’s Defense of Laches Having resolved the issues tried to the jury, this court turns next to resolution of the equitable issues tried to the bench over the course of two days in April 1996. As noted above, Sony contends laches and equitable estoppel bar Loral’s recovery in this case. Equitable estoppel and laches fall within the sound discretion of the trial court. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1041 (Fed.Cir.1992) (en banc); Jamesbury Corp. v. Litton Indus. Prods., Inc., 839 F.2d 1544, 1553 (Fed.Cir.), cert. denied, 488 U.S. 828, 109 S.Ct. 80, 102 L.Ed.2d 57 (1988). Both defenses ultimately depend on underlying factual determinations. Hemstreet v. Computer Entry Systems Corp., 972 F.2d 1290, 1292 (Fed.Cir.1992). The defense of laches arises when a patentee “neglect[s] or delay[s] ... bringing suit to remedy an alleged wrong, which taken together with lapse of time and other circumstances, causes prejudice to the adverse party and operates as an equitable bar.” Gasser Chair Co., Inc. v. Infanti Chair Mfg., Corp., 60 F.3d 770, 773 (Fed.Cir.1995) (quoting Aukerman, 960 F.2d at 1028-29). To show laches, the defendant must prove by a preponderance of the evidence: (1) unreasonable and inexcusable delay in filing suit, and (2) material prejudice resulting from the delay. Aukerman, 960 F.2d at 1032-33. A rebuttable presumption of laches arises in patent infringement cases for delays longer than six years. Id. at 1034. Nonetheless, as an equitable doctrine, laches does not operate on mechanical rules. Id. at 1032 (internal quotations and citations omitted). The reasonableness of a delay in bringing suit depends on the facts and circumstances of each case. Gasser, 60 F.3d at 773; Aukerman, 960 F.2d at 1032; Meyers, 912 F.2d at 1462-63. In determining when the clock begins ticking for laches, this court must consider when the patent owner knew or should have known of defendant’s alleged infringement. Jamesbury, 839 F.2d at 1552. Beginning in 1979, Sony had a license to practice the ’674 process. Therefore, when the license expired in July 1985, Fairchild knew or should have known of Sony’s continued" }, { "docid": "3238730", "title": "", "text": "After the parties engaged in discovery tailored to the issue of laches, Appellees filed a motion for summary judgment asserting that Mr. Lis-mont’s inventorship claim was barred by laches. The district court agreed and en tered judgment in favor of Appellees. Mr. Lismont filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(1). Discussion “Laches is an equitable defense that may bar an inventorship claim.” Serdarevic v. Advanced Med. Optics., Inc., 532 F.3d 1352, 1358 (Fed.Cir.2008). To prevail on a defense of laches, a defendant must establish that (1) the plaintiffs delay in filing a suit was “unreasonable and inexcusable”; and (2) the defendant suffered “material prejudice attributable to the delay.” A.C. Aukerman v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed.Cir.1992) (en banc); see also SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1811, 1317 (Fed.Cir.2015) (en banc). Further, a rebuttable presumption of laches attaches whenever more than six years passes from the time a purportedly omitted inventor knew or should have known of the issuance of the relevant patent. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1163 (Fed.Cir.1993); Serdarevic, 532 F.3d at 1358. This presumption of laches may be rebutted if the plaintiff “offer[s] evidence to show an excuse for the delay or that the delay was reasonable” or by offering “evidence sufficient to place the matters of defense prejudice and economic prejudice genuinely in issue.” Aukerman, 960 F.2d at 1038. Here, the district court concluded at the summary judgment stage that Mr. Lismont’s inventorship claim was barred by laches. We review the grant of summary judgment under the law of the regional circuit. Charles Mach. Works, Inc. v. Vermeer Mfg. Co., 723 F.3d 1376, 1378 (Fed.Cir.2013). The Fourth Circuit generally reviews the grant or denial of summary judgment de novo. See Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.1991). Summary judgment is appropriate when “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). The issue of" }, { "docid": "12166229", "title": "", "text": "[defendant] must have suffered ‘material prejudice attributable to the delay.’ ” (quoting Aukerman, 960 F.2d at 1028)). The district court held that Serdarevic had not met her burden of production on either reasonable delay or prejudice. Serdarevic argues that her eight-year delay in bringing suit was reasonable or excusable because of her unfamiliarity with the U.S. patent system, her inability to obtain legal counsel, and her efforts to license her inventorship rights. The district court considered these excuses, but found them insufficient to rebut the presumption that her delay was unreasonable. Serdarevic, *7. We agree. While Serda-revic herself may have been unfamiliar with the U.S. patent system, she was represented by patent counsel in 1999. Her personal lack of familiarity with the patent system therefore does not excuse her failure to file suit. Nor can her later inability to find counsel willing to pursue her claims on a contingency basis excuse her delay. “A patentee’s inability to find willing counsel ... is widely rejected as a legally cognizable reason to excuse an unreasonable delay in filing suit.” Hall, 93 F.3d at 1554. Finally, Serdarevic does not explain — and we do not understand- — why her ongoing efforts to license her inventor-ship rights would prevent her from bringing suit to correct inventorship. If anything, her interest in licensing her claimed invention should have provided a strong incentive for her to correct inventorship as soon as possible. Even taken together, Serdarevic’s excuses are insufficient to rebut the presumption that her eight-year delay was unreasonable. There is no basis for us to conclude that the district court abused its discretion when it concluded that Serdarevic’s delay was unreasonable. Nor did the district court abuse its discretion when it concluded that Serdarevic failed to rebut the presumption of prejudice: “Material prejudice ... may be either economic or evidentiary. Evidentiary, or ‘defense’ prejudice, may arise by reason of a defendant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events, thereby undermining the" }, { "docid": "4822852", "title": "", "text": "years after a claim accrues creates a rebuttable presumption of laches. Advanced Cardiovascular Sys. v. SciMed Life Sys., 988 F.2d 1157, 1163 (Fed.Cir.1993). When reviewing a laches decision rendered on summary judgment, this court reviews for an abuse of discretion unless genuine issues of material fact preclude summary judgment. Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1349 (Fed.Cir.2009) (“[I]f genuine issues of material fact preclude summary judgment of laches, ‘we need not apply [the abuse of discretion] standard[ ] of review that generally applies to laches.” (quoting Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed.Cir.1998))) (second and third alterations in original); see also Aukerman, 960 F.2d at 1039 (“[T]he standard of review of the conclusion of laches is abuse of discretion.”). On appeal, Hor and Meng argue that the district court erred in finding that their inventorship claims accrued before the '866 and '418 patents issued. According to Hor and Meng, because a 35 U.S.C. § 256 cause of action does not arise until the patent issues, the laches clock accordingly cannot begin to run prior to issuance. Here, because Hor and Meng filed suit within six years of the issuance of the '866 and '418 patents, they contend that a presumption of laches should not apply. Chu, in contrast, maintains that the laches period can begin pre-patent issuance, where, as here, the purported inventors knew or should have known of the potential inventorship dispute before the patent issued. We agree with Hor and Meng. Section 256 creates a private cause of action to correct inventorship in an issued patent: Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of all the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. The error of omitting inventors or naming persons who are not inventors shall not invalidate the patent" }, { "docid": "3238732", "title": "", "text": "laches, however, “is committed to the sound discretion of the district court.” Aukerman, 960 F.2d at 1032. Because the factors underlying a laches determination — unreasonable delay and prejudice — are factual in nature, genuine issues of material fact as to these factors will preclude summary judgment in favor of the defendant. For this reason, “[w]hen reviewing a laches decision rendered on.summary judgment, this court reviews for an abuse of discretion unless genuine issues of material fact preclude summary judgment.” Pei-Herng Hor v. Ching-Wu Chu, 699 F.3d 1331, 1334 (Fed.Cir.2012). If the presumption of laches attaches, a plaintiff 'may defeat summary judgment by “raising] a genuine dispute as to either delay or prejudice.” Hemstreet v. Comput. Entry Sys. Corp., 972 F.2d 1290, 1293 (Fed.Cir.1992). If the plaintiff makes such a showing, the presumption dissolves and the defendant is then “put to its proof on both factors” and “must affirmatively prove (1) unreasonable and inexcusable delay and (2) prejudice resulting from that delay.” Id. If, however, we agree with the district court that there are no genuine issues of material fact, we may set aside the imposition of laches if “the decision rests on an erroneous interpretation of the law or on clearly erroneous factual underpinnings.” Serdarevic, 532 F.3d at 1358; see also Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir.2012) (“The court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” (internal quotation marks omitted)). On appeal, Mr. Lismont first asserts that the district .court should not have applied the laches presumption against his inventorship claim. Alternatively, Mr. Lismont seems to argue that his litigation in the German and European courts served as notice to Binzel-Germany that an inventorship suit in the United States was likely forthcoming and thus was sufficient to excuse his delay and rebut the presumption of laches. We address each argument in turn. I. Presumption of Laches The district court found, based on a statement made by Mr. Lismont to the German court, that Mr. Lismont undisputedly knew" }, { "docid": "3238733", "title": "", "text": "genuine issues of material fact, we may set aside the imposition of laches if “the decision rests on an erroneous interpretation of the law or on clearly erroneous factual underpinnings.” Serdarevic, 532 F.3d at 1358; see also Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294, 299 (4th Cir.2012) (“The court has abused its discretion if its decision is guided by erroneous legal principles or rests upon a clearly erroneous factual finding.” (internal quotation marks omitted)). On appeal, Mr. Lismont first asserts that the district .court should not have applied the laches presumption against his inventorship claim. Alternatively, Mr. Lismont seems to argue that his litigation in the German and European courts served as notice to Binzel-Germany that an inventorship suit in the United States was likely forthcoming and thus was sufficient to excuse his delay and rebut the presumption of laches. We address each argument in turn. I. Presumption of Laches The district court found, based on a statement made by Mr. Lismont to the German court, that Mr. Lismont undisputedly knew by February 12, 2001, that Binzel-Germany and/or Mr. Sattler had already filed the application that eventually issued as the '406 patent. Because Mr. Lismont knew of the application before the '406 patent issued, the district court concluded that the laches clock started to run when the '406 patent issued on August 6, 2002. See Pei-Hemg Hor, 699 F.3d at 1335 (“[T]he laches clock [can]not start to run— at the earliest — until the patent issue[s].”). More than ten years later, on October 31, 2012, Mr. Lismont initiated the present action. Given that this delay exceeded six years, the district court found that the rebuttable presumption of laches attached. Serdarevic, 532 F.3d at 1358 (“ ‘A delay of more than six years after the omitted inventor knew or should' have known of the issuance of the patent will produce a rebuttable presumption of laches.’ ” (quoting Advanced Cardiovascular Sys., 988 F.2d at 1163)). Mr. Lismont argues that he did not delay in initiating the underlying action because he had been diligently seeking to vindicate his inventorship" }, { "docid": "5710270", "title": "", "text": "330 (2d Cir.1958); Gillons v. Shell Co., 86 F.2d 600, 608-09 (9th Cir.1936), cert. denied, 302 U.S. 689, 58 S.Ct. 9, 82 L.Ed. 532 (1937). The court finds that Zimmer’s contention that it has suffered evidentiary prejudice is unsupported by any evidence that it has not been able to present a full and fair defense on the merits of the claim. A.C. Aukerman Co., 960 F.2d at 1028, 1033. Zimmer does not claim that the loss of Dr. Insall himself prejudiced its defense, but rather that the loss of his files did. (D.I. 90 at 40.) However, Dr. Insall did not keep files in his office, and he did not have a computer. (Tr. at 900:1-21.) Furthermore, Zimmer has not pointed to any specific files that were lost and that might have aided its defense. Zimmer also argues that “the fading of witnesses’ memories” prejudiced its ability to present its defense. (D.I. 90 at 40.) However, such “[c]onclusory statements ... that witnesses’ memories have lessened ... are not sufficient.” Meyers v. Asics Corp., 974 F.2d 1304, 1308 (Fed.Cir.1992). Finally, Zimmer contends that “Mr. Reeves can no longer identify the specific contributions of named inventors,” causing harm to its defense. (D.I. 90 at 30.) However, the specific contributions of the named inventors of the patents are not at issue since the patentee is “under no obligation to substantiate each inventor’s contribution.” Canon Computer Sys., Inc. v. Nu-Kote Int’l, Inc., 134 F.3d 1085, 1088 (Fed.Cir.1998). Thus, the court concludes that laches does not apply to the plaintiffs’ correction of inventorship claims since the plaintiffs have rebutted the presumption of laches by showing that Zimmer was not materially prejudiced by their delay. Aukerman, 960 F.2d at 1038; see also Intirtool, Ltd. v. Texar Corp., 369 F.3d 1289, 1297 (Fed.Cir.2004). IY. CONCLUSION Based on the factual record in this case, and the documentary and testimonial evi dence presented at trial, the court concludes that neither plaintiff has proven by clear and convincing evidence that he contributed to the conception of a novel element of any claim of the patents and, therefore, neither shall be" }, { "docid": "5710268", "title": "", "text": "should have known of the issuance of the patent will produce a rebuttable presumption of laches.” Adv. Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 F.2d 1157, 1161 (Fed.Cir.1993). Zimmer may establish its laches defense by a preponderance of the evidence. Hor v. Chu, 765 F.Supp.2d 903, 913 (S.D.Tex.2011). For the reasons stated in the previous Section, the court concludes that Dr. Scott and Dr. Scuderi knew or should have known of the issuance of the patents by 1997, or by 2001. Therefore, the court finds that the rebuttable presumption of laches applies to the plaintiffs’ correction of inventorship claims. Serdarevic, 532 F.3d at 1358. The court further finds, however, that the plaintiffs’ have rebutted the presumption of laches by showing that Zimmer has not suffered any material prejudice that could be attributable to the delay in bringing the suit. Hemstreet v. Com. Entry Sys. Corp., 972 F.2d 1290, 1293-94 (Fed.Cir.1992). “Material prejudice ... may be either economic or evidentiary. Evidentiary, or ‘defense’ prejudice, may arise by reason of a defendant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events, thereby undermining the court’s ability to judge the facts.... Economic prejudice may arise where a defendant and possibly others will suffer the loss of monetary investments or incur damages which likely would have been prevented by earlier suit.” AC Aukerman Co. v. R.L. Chaides Const. Co., 960 F.2d 1020, 1028, 1032 (Fed.Cir.1992). Zimmer does not claim to have suffered economic prejudice. (See D.I. 90 at 30, 40.) Zimmer claims to have suffered evidentiary prejudice due to “the loss of Dr. Insall’s documents and fading of witnesses’ memories....” (Id.) Evidentiary prejudice is a question that must be answered by evaluating whether delay in filing the case resulted in the party raising the defense not being able to present a full and fair defense on the merits of the claim. Barrois v. Nelda Faye, Inc., 597 F.2d 881, 885 (5th Cir.1979); Smith v. Sinclair Ref. Co., 257 F.2d 328," }, { "docid": "8936836", "title": "", "text": "correctly allocated the burden of proof and considered all pertinent factors, we will not overturn the court’s grant of summary judgment on the basis of laches unless it is unreasonable or based on an erroneous legal interpretation. See AC. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1039, 22 U.S.P.Q.2d 1321, 1333 (Fed.Cir.1992) (in banc). To prove laches, a defendant must show that “the plaintiff delayed filing suit an unreasonable and inexcusable length of time after the plaintiff knew or reasonably should have known of its claim against the defendant; and ... the delay resulted in material prejudice or injury to the defendant.” Gasser Chair, 60 F.3d at 773, 34 U.S.P.Q.2d at 1824. To meet the latter prong, a defendant may establish either evidentiary or economic prejudice. See Aukerman, 960 F.2d at 1033, 22 U.S.P.Q.2d at 1328; Cornetta v. United States, 851 F.2d 1372, 1378 (Fed.Cir.1988) (in banc). Evidentiary, or “defense” prejudice, may arise by reason of a defendant’s inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events, thereby undermining the court’s ability to judge the facts. Economic prejudice may arise where a defendant and possibly others will suffer the loss of monetary investments or incur damages which likely would have been prevented by earlier suit. Aukerman, 960 F.2d at 1033, 22 U.S.P.Q.2d at 1328-29 (citations and paragraphing omitted); see also Cornetta, 851 F.2d at 1378. When raising the laches defense in the summary judgment context, the defendant also must establish that there was no genuine issue of material fact about the delay or the prejudice. See Gasser Chair, 60 F.3d at 773, 34 U.S.P.Q.2d at 1824. A delay of more than six years raises a presumption that it is unreasonable, inexcusable, and prejudicial. See Aukerman, 960 F.2d at 1035-36, 22 U.S.P.Q.2d at 1331. This presumption shifts to the patentee the burden of producing evidence, which if believed, would show that either the patentee’s delay was reasonable or excusable under the circumstances or the defendant suffered" }, { "docid": "3238729", "title": "", "text": "he failed to prove that he had an inventorship interest in the DE '934 patent. Specifically, on December 18, 2008, the German court concluded that Mr. Lismont had not proven that he was either the sole inventor or a joint inventor of the inventive process disclosed in the DE '934 patent. Mr. Lis-mont appealed this decision to the German Supreme Court, which rejected his appeal on November 25, 2009. After losing his inventorship claim and his related claim for damages, Mr. Lismont also filed actions in the German Federal Constitutional Court and in the European Court of Human Rights. These two cases were not1 appeals from the German Supreme Court’s rejection of his appeal, but were separate actions claiming that the earlier proceedings amounted to a denial of basic due process in violation of his constitutional or human rights, respectively. On October 31, 2012, twelve years after Mr. Lismont initiated the First German Litigation, he initiated the underlying litigation seeking, among other things, to correct inventorship of the '406 patent under 35 U.S.C. § 256(a). After the parties engaged in discovery tailored to the issue of laches, Appellees filed a motion for summary judgment asserting that Mr. Lis-mont’s inventorship claim was barred by laches. The district court agreed and en tered judgment in favor of Appellees. Mr. Lismont filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1295(a)(1). Discussion “Laches is an equitable defense that may bar an inventorship claim.” Serdarevic v. Advanced Med. Optics., Inc., 532 F.3d 1352, 1358 (Fed.Cir.2008). To prevail on a defense of laches, a defendant must establish that (1) the plaintiffs delay in filing a suit was “unreasonable and inexcusable”; and (2) the defendant suffered “material prejudice attributable to the delay.” A.C. Aukerman v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1028 (Fed.Cir.1992) (en banc); see also SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 807 F.3d 1811, 1317 (Fed.Cir.2015) (en banc). Further, a rebuttable presumption of laches attaches whenever more than six years passes from the time a purportedly omitted inventor knew or should have known of the" }, { "docid": "4067384", "title": "", "text": "unreasonable. Rather, the reasonableness of any delay depends upon the circumstances of each ease. Id. However, a delay exceeding six years creates a rebuttable presumption that the delay was unreasonable and that the defendant suffered material prejudice. In order to rebut this presumption, the patentee must produce some evidence that creates a genuine issue of fact as to at least one of the elements of laches. Id. at 1037-38. In addition, the defendant must demonstrate that it suffered material prejudice as a result of any alleged delay. Such prejudice may be either evidentiary or economic. In considering economic prejudice, a court should require more than mere monetary loss attributable to a finding of liability. Id. at 1033. Rather, a court must look to the “change in the economic position of the alleged infringer during the period of delay.” Id. The defendant must demonstrate a causal nexus between the patentee’s delay and the defendant’s expenditures or investment: “It is not enough that the alleged infringer changed its position — i.e., invested in production of the allegedly infringing device. The change must be because of and as a result of the delay, not simply a business decision to capitalize on a market opportunity.” Hemstreet v. Computer Entry Sys. Corp., 972 F.2d 1290, 1294 (Fed.Cir.1992). Where more than one patent is asserted, laches must be shown separately for each such patent. Meyers v. Asics Corp., 974 F.2d 1304, 1309 (Fed.Cir.1992). A. Katecho 1. The ’998 Patent As an initial matter, with respect to R2’s action for inducement of infringement and contributory infringement of the ’998 patent, Katecho has failed to demonstrate that R2 is presumptively barred because it delayed for more than six years in filing its suit. Under laches, the period of delay is measured backwards from the filing of suit until the paten-tee knew or, in the exercise of due diligence, should have known of the alleged infringing activity. Aukerman, 960 F.2d at 1035-36. R2 filed suit on May 23, 1994. Therefore, the six year deadline rests on May 23, 1988. Although the ’998 patent was issued in 1983, R2 does" } ]

[ { "docid": "22694357", "title": "", "text": "medical evidence corroborating his claim. The IJ stated that she did not doubt that Celis-Castellano suffers from asthma, but she stated that she was not convinced that the asthma attack he suffered on June 20, 1998, constituted a serious illness rising to the level of exceptional circumstances. Celis-Castellano appealed to the Board, and the Board stated that the lack of evidence regarding the severity of Celis-Castellano’s asthma attack restricted its ability to determine if his illness was exceptional. Further, the Board commented that he gave no explanation for neglecting to contact the immigration court prior to the hearing. The Board stated that while such notification is not required either by statute or regulation, the Board had previously held that lack of notification is a factor tending to undermine a claim of exceptional circumstances. Matter of BAS-, Interim Decision 3350 (BIA 1998). The Board found that Celis-Castellano had failed to establish that his asthma attack amounted to “exceptional circumstances” within the Immigration and Nationality Act. The Board denied the appeal. We review the Board’s denial of a motion to reopen deportation proceedings for abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Garcia v. INS, 222 F.3d 1208, 1209 (9th Cir.2000). “Unless the [Board] acted arbitrarily, irrationally, or contrary to law, we should not disturb [its] ruling.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000) (citation and internal quotation marks omitted). The Board’s factual findings may be reversed only if the evidence compels a different result. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Edüd 38 (1992). II. Celis-Castellano challenges the Board’s denial of his motion to reopen on the ground that the Board did not deem his asthma attack an exceptional circumstance under the statute. Therefore, we must determine whether the Board abused its discretion in denying the motion to rescind the in absentia order of removal. When the ground for the motion to reopen is that the IJ held an in absentia hearing and issued an in absentia order of removal, the statute provides that “[a]ny" } ]

[ { "docid": "22604577", "title": "", "text": "FISHER, Circuit Judge. Petitioner Kyu Oh (“Oh”) appeals the Board of Immigration Appeals’ (“BIA”) denial of her motion to reconsider its rejection of her notice of appeal of an Immigration Judge’s (“IJ”) decision as being untimely filed. Oh sought to excuse the late filing as having been caused by an overnight delivery service’s failure to deliver the notice until well past the BIA’s 30-day deadline. Noting that in using an overnight delivery service she was following the very procedure the BIA’s own Practice Manual recommended, Oh contends that the BIA abused its discretion and denied her due process in refusing to consider her reasonable excuse. Because the BIA denied Oh’s motion to reconsider on the erroneous assumption that it had no authority to extend the time for appeal, we grant Oh’s petition and remand to the BIA to determine whether her circumstances justify excusing her late filing. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s denial of a motion to reconsider for abuse of discretion. See Lara-Torres v. Ashcroft, 383 F.3d 968, 972 (9th Cir.2004). “ ‘An abuse of discretion will be found when the denial was arbitrary, irrational or contrary to law.’ ” Ontiveros-Lopez v. INS, 213 F.3d 1121, 1124 (9th Cir.2000) (quoting Watkins v. INS, 63 F.3d 844, 847 (9th Cir.1995)). Oh, a native and citizen of South Korea, became a lawful permanent resident of the United States when she married a U.S. citizen in 1985; she was divorced in 1989. In 2001, after a six-week stay in Korea, Oh tried to re-enter the United States. She was detained by immigration officials, and admitted she had misdemeanor convictions for prostitution and possession of a controlled substance; she was also arrested on an outstanding warrant for prostitution. The former Immigration and Naturalization Service charged her with being removable; an IJ found her removable on January 10, 2003. That decision triggered a 30-day deadline for Oh to file a notice of appeal with the BIA. See 8 C.F.R. §§ 1003.38(b), (c). On January 24, Oh and her counsel completed the necessary paperwork, and on February" }, { "docid": "22638913", "title": "", "text": "a removal hearing on November 4,1999. Salta received this notice and appeared at the hearing with counsel, but they were advised that the court had yet to receive her file and that the hearing would have to be continued. On June 27, 2000, Salta received a letter indicating a new hearing date would be scheduled. The new hearing was subsequently scheduled for August 29, 2000, and, according to its records, the INS sent another notice of hearing to Sal-ta by regular mail at her address of record — -the address that appeared on her petition and the address at which she had received both the initial notice and the June 27, 2000 notice. No copy was sent to her counsel. Salta failed to appear, and the Immigration Judge (“IJ”) conducted the removal hearing in absentia, pursuant to 8 U.S.C. § 1229a(b)(5)(A). According to Salta, the next item she received in the mail was the letter stating she was to report to the INS for removal on October 17, 2000. She then filed a timely motion to reopen the removal proceedings, asserting in her pleadings that she had never received notice of the August 29, 2000 hearing date. The IJ denied the motion, citing the presumption that public officers discharge their duties. The IJ found that Salta had not met her burden with respect to the affirmative defense of non-delivery. The BIA dismissed her appeal for similar reasons, and also noted that counsel had not been sent a notice of the hearing because he had failed to file a Notice of Appearance prior to the issuance of the in absentia order of removal. This timely appeal followed. Standard of Review We review the denial of a motion to reopen or reconsider for abuse of discretion. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). Discussion I. Notice to Salta If an'alien is provided proper written notice of a removal proceeding and fails to attend, the immigration judge is required to enter an in absentia order of removal. 8 U.S.C. § 1229a(b)(5)(A). Such an order may be rescinded only if the alien" }, { "docid": "22801529", "title": "", "text": "established a prima facie case of eligibility for relief); see also In re G-C-L, 23 I. & N. Dec. 359, 361 (BIA 2002) (prima facie eligibility for asylum is a requirement for granting a motion to reopen). In arguing that it was correct for the BIA to require a showing of prima facie eligibility, the government acknowledges the similarity between Mendez-Gutierrez’s reinstatement request and a motion to reopen, noting that, “like a motion to reopen, his reinstatement request sought to bring a closed matter back to life.” Moreover, aliens who have challenged removal proceedings after voluntarily withdrawing their applications for asylum typically have used motions to reopen as the procedural mechanism for bringing the challenge. See Cano-Merida v. INS, 311 F.3d 960, 963 (9th Cir.2002) (petitioner filed motion to reopen asylum application that he had voluntarily withdrawn after IJ warned him he had no valid claim for asylum); Konstantinova v. INS, 195 F.3d 528, 529 (9th Cir.1999) (petitioner withdrew asylum application, accepted voluntary departure, and then filed a motion to reopen asylum case based on new evidence); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998) (same). That Mendez-Gutierrez sought to reinstate his asylum application before the IJ issued an order of removal, rather than filing a motion to reopen after the order was issued, does not deprive us of meaningful standards for judicial review of the BIA’s action. Accordingly, we hold that we have jurisdiction to review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his withdrawn application for asylum, as we would over the denial of a motion to reopen. 8 U.S.C. § 1252(b). II. Because we are proceeding by analogy to the standards applicable to the denial of a motion to reopen, we review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his asylum application for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002) (denial of motion to reopen is reviewed for abuse of discretion). Our review is limited to the grounds on which the BIA based its denial. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988). The BIA determined that" }, { "docid": "22228599", "title": "", "text": "REINHARDT, Circuit Judge. Luis Franco-Rosendo and Eulalia Zaca-rías de Franco, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals (“BIA”) decision of September 24, 2004, denying their motion to reopen. We grant their petition and remand to the BIA for further consideration. The petitioners entered the United States from Mexico without inspection on or about April 25, 1990. They are married and currently reside in Reedley, California with their four United States citizen children. On December 3, 2001, the petitioners were issued a Notice to Appear. In the subsequent hearing, the couple conceded removability but requested cancellation of removal. The Immigration Judge (“IJ”) denied their request. The IJ’s decision was affirmed by the BIA on the ground that the couple failed to demonstrate that their United States citizen children would suffer “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(l)(D). The BIA instead granted voluntary departure. By the time voluntary departure was granted, however, the female petitioner had become seriously ill. The couple failed to pay their departure bond and thus, they argue, effectively declined the offer of voluntary departure. The couple then filed a timely motion to reopen on July 23, 2004, providing the BIA with information about the female petitioner’s illness and the likely effect on her four United States citizen children if their critically ill mother were deported. In its opinion, the BIA assumed that the couple’s failure to depart did not make them statutorily ineligible for relief, but denied the motion to reopen in the exercise of its discretion. Petitioners request review from this Court. We review BIA denials of motions to reopen for abuse of discretion. Medina-Morales v. Ashcroft, 371 F.3d 520, 529 (9th Cir.2004). The BIA abuses its discretion when it acts “arbitrarily, irrationally, or contrary to law.” Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004) (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000)). In order for the court to exercise our limited authority, there must be a reasoned explanation by the BIA of the basis for its decision. Movsisian v. Ashcroft, 395 F.3d 1095," }, { "docid": "22932235", "title": "", "text": "in the United States. The BIA remanded for consideration of the other aspects of Petitioner’s application for suspension of deportation. Later that month, the Immigration Court sent a hearing notice by certified mail to Petitioner’s old address. The notice was returned to the court “unclaimed.” When Petitioner failed to appear for the scheduled hearing, the IJ ordered her deported in absentia and sent notice of the deportation order to Petitioner’s old address. Petitioner did not receive the notice. The INS later sent a notice to the same address telling Petitioner when to report for deportation. According to Petitioner, a former neighbor gave her this second notice when she was visiting her old neighborhood. Petitioner filed a motion to rescind the deportation order and to reopen her case. The INS opposed her motion, arguing that she did not establish that exceptional circumstances or ineffective service of the hearing notice caused her failure to appear. On December 20, 2001, the IJ denied Petitioner’s motion to reopen. The BIA affirmed without opinion, and Petitioner timely appealed to this court. STANDARD OF REVIEW Because the BIA affirmed without opinion, this court directly reviews the immigration judge’s decision as though it were the decision of the BIA. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). This court reviews denial of a motion to reopen for abuse of discretion. Varela v. INS, 204 F.3d 1237, 1239 (9th Cir.2000). An immigration judge abuses his discretion when he acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). DISCUSSION The IJ should have recognized that exceptional circumstances justify granting Petitioner’s motion to reopen. In this unusual case, denial of Petitioner’s motion was arbitrary and irrational. Petitioner’s order to show cause was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) became effective. Therefore, pre-IIRIRA rules regarding motions to reopen apply here. Under § 242B(3) of the Immigration and Nationality Act, the court should grant a motion to reopen an in absentia order where “exceptional circumstances” exist or where the alien was not afforded statutorily required notice. The pre-IIRIRA" }, { "docid": "22147423", "title": "", "text": "filed a motion to reopen her removal proceeding and to rescind her in absentia removal order with the Immigration Court, contending she never received notice of her hearing. The IJ denied the motion. Popa timely appealed to the BIA, which adopted and affirmed the IJ’s decision, and dismissed Popa’s appeal. Popa timely pe titioned this court for review of the BIA’s decision. II. Standard of Review When the BIA adopts the IJ’s decision in its entirety citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), as here, this court reviews the IJ’s decision. Abebe v. Gonzales, 432 F.3d 1037, 1039 (9th Cir.2005) (en banc). This court reviews claims of error in an IJ’s denial of a motion to reopen for abuse of discretion. Chete Juarez v. Ashcroft, 376 F.3d 944, 947 (9th Cir.2004). An IJ “abuses his discretion when he acts arbitrarily, irrationally, or contrary to law.” Id. (internal citation and quotation marks omitted). Further, this court reviews de novo claims of error in “determination^] of purely legal questions regarding the requirements of the Immigration and Nationality Act.” Singh v. INS, 213 F.3d 1050, 1052(9th Cir.2000). III. Discussion Pursuant to 8 U.S.C. § 1229(a), an alien in removal proceedings must receive written notice — a Notice to Appear — specifying, in relevant part: (1) the “requirement that the alien must provide the Attorney General immediately with a written record of any change of the alien’s address or telephone number” and the consequences of the failure to do so; and (2) the “time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(l)(F)(n)-(iii), (G)(i). If there is a change in the time and place of such proceedings, the government must provide written notice to the alien of the change and the consequences of the failure to attend such proceedings. Id. § 1229(a)(2)(A). Written notice “shall be given in person to the alien,” or, “if personal service is not practicable, through service by mail to the alien.” Id. § 1229(a)(1). Pursuant to 8 U.S.C. § 1229a(b)(5)(A), an “alien who, after written notice ... has been provided" }, { "docid": "22688277", "title": "", "text": "(BIA 2002) (holding that a motion to reopen may be granted to provide an alien with the opportunity to pursue an application for an adjustment of status when a five-part test is satisfied). Mrs. De Martinez alleged in her motion to reopen that she is married to a United States citizen. Her husband filed an application on December 11, 1997, requesting immigrant status on her behalf pursuant to 8 U.S.C. § 1154(a) and 8 U.S.C. § 1151(b)(2)(A)(i). In her motion to reopen, Mrs. De Martinez argued that In re Velarde-Pacheco held that such an unapproved visa application provides sufficient grounds to reopen removal proceedings. The BIA denied the motion to reopen because she failed to leave the United States within thirty days of the effective date of its order granting voluntary departure. Mrs. De Martinez filed a timely petition for review. II We have subject matter jurisdiction to hear a petition for review of a decision of the BIA denying a motion to reopen. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1169-70 (9th Cir.2003) (holding that the court’s jurisdiction to review denials of motions to reopen was not eliminated by statutory restrictions pertaining to voluntary departure and other discretionary relief); cf. Sarmadi v. INS, 121 F.3d 1319, 1321 (9th Cir.1997) (holding that the court does not have jurisdiction to review an order denying a motion to reopen where an alien has been convicted of certain crimes). We review the denial of a motion to reopen for abuse of discretion. Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). Pure questions of law raised in a petition to review a decision of the BIA are reviewed de novo. Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999). Mrs. De Martinez contends that the BIA abused its discretion in denying her motion to reopen because she did not receive actual notice of the penalties for failing to depart. She concedes that the BIA’s order was mailed to her attorney. The immigration laws applicable in this matter were revised and reorganized in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRI-RA”)." }, { "docid": "4464180", "title": "", "text": "Court that the BIA abused its discretion in denying a motion to reopen and [an] order[ ] that the case be remanded to the BIA would have the effect of undermining the jurisdictional bar imposed by 8 U.S.C. § 1252(a)(2)(C).” Durant v. INS, 393 F.3d at 115-16. The present case is one step beyond Durant, as Santos’s petition seeks review not of the denial of his motion to reopen but rather of the denial of his motion for reconsideration of the denial of his motion to reopen. The Durant principle remains controlling, for to allow the petition for reconsideration would, again, indirectly provide a vehicle for challenging the order of removal. Indeed, Santos’s petition for review of the denial of reconsideration in this case overtly asks that we, inter alia, “[r]evoke the final Order of deportation.” (Petition for Review, WHEREFORE ¶ 1.) Accordingly, we conclude that, to the extent that the order of removal is made unreviewable by the jurisdiction-stripping provision in § 1252(a)(2)(C), we lack jurisdiction to review the BIA’s denial of reconsideration of a motion to reopen the removal proceedings. There are, however, aspects of § 1252(a)(2)(C) as to which judicial review has not been eliminated. First, § 1252(a)(2)(C) does not deprive the courts of jurisdiction to determine whether the section is applicable, e.g., whether, the petitioner is in fact an alien, whether he has in fact been convicted, and whether his offense is one that is within the scope of 8 U.S.C. § 1182(a)(2). See, e.g., Ming Lam Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148 L.Ed.2d 680 (2001); Moore v. Ashcroft, 251 F.3d 919, 923 (11th Cir.2001). Although Santos attempts to invoke this principle, contending that his offense is not within the scope of § 1252(a)(2)(C) because attempted possession of cocaine is “not [a] ... particularly serious crime” (Santos Aff. ¶ 14), that contention is meritless in light of the statutory language. The cocaine-related offense, of which Santos was convicted is squarely covered by § 1182(a)(2), and" }, { "docid": "22744045", "title": "", "text": "Opinion by Judge B. FLETCHER; Dissent by Judge CALLAHAN. OPINION B. FLETCHER, Circuit Judge: Elza Avagyan petitions for review of the Board of Immigration Appeals’s (BIA’s) denial as untimely of her motion to reopen removal proceedings to apply for adjustment of status, on account of ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D). See De Martinez v. Ashcroft, 374 F.3d 759, 761 (9th Cir.2004). The denial of a motion to reopen is reviewed for abuse of discretion. Id. We grant the petition for review and remand to the BIA for further proceedings consistent with this opinion. I. Avagyan, a seventy-one year old native of Turkmenistan and a citizen of Armenia, came to the United States on a visitor’s visa in March 2001. She overstayed her visa and filed an application for asylum and withholding of removal on October 16, 2001, stating that she had been persecuted in Armenia due to her political activities. The INS charged Avagyan with removal on January 2, 2002. Avagyan’s daughter, Naira Vartanyan, has lived in the United States since 1989, and became a naturalized United States citizen on March 28, 2003. In April 2002, Avagyan retained Ron Martinez (a notario) and Joel Spence (an attorney) to represent her. Avagyan communicated primarily with Martinez, who told her that Spence would represent her for $2000. Avagyan first met Spence at a removal hearing on April 16, 2002. He did not ask her any questions about her case. The Immigration Judge (IJ) set Avagyan’s removal hearing for November 5, 2003. Avagyan had no contact with Spence between April 16, 2002 and November 3, 2003; during that time, she met Martinez once, for the sole purpose of paying him $750 in attorney’s fees. On November 3, 2003, two days before Avagyan’s scheduled hearing, she met Spence in the foyer of an office building. Spence asked Avagyan whether she had any money and whether she wanted to continue the case. When Avagyan insisted on proceeding with the hearing, Spence instructed her to meet him in court and “be ready.” He did not ask any questions about" }, { "docid": "851408", "title": "", "text": "the phrase, “maximum penalty possible,” refers to the statutory maximum, not the guideline range. Because the statutory maximum for Mendez’s bribery offense was fifteen years, the IJ held that he was ineligible for the petty offense exception. The IJ accordingly denied Mendez’s motion for termination of the proceedings and ordered Mendez removed to Mexico. Mendez then filed an administrative appeal to the Board. The BIA dismissed Mendez’s appeal. It pointed out that Mendez was given more than three months in which to prepare his application for relief, that he was represented by Cosio throughout that time, and that he still failed to file any applications. The Board further noted that Cosio did not seek a continuance between the May hearing and the date he filed his motion to withdraw as counsel in August. . The Board accordingly concluded that the IJ did not abuse her discretion in denying Mendez’s motion for a continuance, agreeing with the IJ that Mendez’s failure to file his applications for relief was unreasonable. The Board also agreed with the IJ’s interpretation of the petty offense exception, ie., that the maximum penalty possible refers to the statutory maximum found in 18 U.S.C. § 201; accordingly, the Board concluded that Mendez did not qualify for the exception. Mendez filed a timely petition for review. STANDARDS OF REVIEW Where, as here, “the BIA has conducted a de novo review of the record, the Ninth Circuit’s review is limited to the BIA’s decision, except to the extent the BIA expressly adopted the IJ’s opinion.” Singh v. Ashcroft, 351 F.3d 435, 438 (9th Cir.2003). We accordingly review the decision of the Board. Determinations of “purely legal questions regarding the Immigration and Nationality Act” are reviewed de novo. Kankamalage v. INS, 335 F.3d 858, 861 (9th Cir.2003). Claims of due process violations are reviewed de novo. Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir.2007). DISCUSSION Mendez argues, first, that he qualifies for the petty offense exception of 8 U.S.C. § 1182(a)(2)(A)(ii)(II) because the maximum sentence he could have received under the sentencing guidelines for his 18 U.S.C. § 201 conviction" }, { "docid": "22892717", "title": "", "text": "that there was no apparent error in service. We have jurisdiction to review the BIA’s denial of motions to reopen in the exercise of the discretion committed to it by regulation. See Kucana v. Holder, - U.S. -, 130 S.Ct. 827, 831, - L.Ed.2d -(2010); Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). We hold that the BIA abused its discretion in failing to discuss Hernandez’s declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the “weight and consequences” of that evidence in its denial of her motion to reopen. Singh, 494 F.3d at 1173. The BIA was required to undertake such an analysis before ruling on the veracity of both Hernandez’s claim that she mailed a Change of Address form and her claim that she did not receive notice from the BIÁ of its decision. We therefore grant Hernandez’s petition and remand this matter to the BIA for further proceedings. I. BACKGROUND Hernandez is a 38-year-old native and citizen of Honduras, who entered the United States without inspection in 1989, and has lived continuously in the United States for the last 21 years. On February 28, 2000, the former Immigration and Naturalization Service (“INS”) served Hernandez with a Notice to Appear, charging her with being subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Hernandez appeared before an Immigration Judge (“IJ”) on February 13, 2004. The IJ ordered her removed, stating that, on the basis of a controlled substance conviction, she was “statutorily barred from cancellation of removal and the Court need not address other issues with regard to her residence in the United States, her character, nor the hardship that would ... befall her lawful permanent resident parent and five United States citizen children.” The IJ also stated that she was “statutorily barred from voluntary departure at the conclusion of the hearing due to a felony offense within the five year time period” and ordered that she be removed to Honduras. On December 22, 2004, proceeding pro se, Hernandez filed a Notice of Appeal with the BIA of the IJ’s December" }, { "docid": "22892716", "title": "", "text": "OPINION REINHARDT, Circuit Judge: Leda Odeth Hernandez-Velasquez (“Hernandez”), a native and citizen of Honduras, petitions for review of the Board of Immigration Appeals’(“BIA”) denial of her motion to reopen and reinstate proceedings, which the BIA construed as a motion to reissue its decision denying her administrative appeal. Hernandez filed a declaration in which she declared under penalty of perjury that she did not receive notice of the BIA’s denial of her administrative appeal because the BIA mailed its decision to her previous address, at which she no longer resided. Hernandez also declared that she timely submitted a “Change of Address” form to the BIA providing it with her correct new address, before it issued its decision. The BIA, in a single paragraph decision, held that there was no evidence to corroborate Hernandez’s claims. Specifically, it stated that there was no proof that it received the Change of Address form that Hernandez declared under penalty of perjury that she had mailed, and that its decision had not been returned by the postal service; therefore it held that there was no apparent error in service. We have jurisdiction to review the BIA’s denial of motions to reopen in the exercise of the discretion committed to it by regulation. See Kucana v. Holder, - U.S. -, 130 S.Ct. 827, 831, - L.Ed.2d -(2010); Singh v. Gonzales, 494 F.3d 1170 (9th Cir.2007). We hold that the BIA abused its discretion in failing to discuss Hernandez’s declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the “weight and consequences” of that evidence in its denial of her motion to reopen. Singh, 494 F.3d at 1173. The BIA was required to undertake such an analysis before ruling on the veracity of both Hernandez’s claim that she mailed a Change of Address form and her claim that she did not receive notice from the BIÁ of its decision. We therefore grant Hernandez’s petition and remand this matter to the BIA for further proceedings. I. BACKGROUND Hernandez is a 38-year-old native and citizen of Honduras, who entered the United States without" }, { "docid": "851401", "title": "", "text": "TASHIMA, Circuit Judge: Pablo Mendez-Mendez (“Mendez”), a native and citizen of Mexico, petitions for review of a decision of the Board of Immigration Appeals (“Board” or “BIA”), dismissing his appeal from an Immigration Judge’s (“IJ”) order of removal. The Board concluded that the IJ did not abuse her discretion in denying Mendez’s motion for a continuance, and that the IJ correctly concluded that Mendez did not qualify for the exception to inadmissibility found in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Accordingly, the Board dismissed Mendez’s appeal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition. BACKGROUND Mendez became a lawful permanent resident of the United States on December 1, 1990. On September 8, 1995, Mendez pled guilty to one count of bribery of a public official, in violation of 18 U.S.C. § 201(b)(1)(A). The sentencing guideline range was zero to six months, and Mendez was sentenced to a three-month term of imprisonment. In 2003, Mendez was returning to the United States from Mexico and applied for admission as a lawful permanent resident. In April 2004, Mendez was served with a Notice to Appear, charging him with inadmissibility for being an alien convicted of a crime involving moral turpitude, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), based on his bribery conviction. A hearing was held before an IJ on May 4, 2004. Through his counsel, Fernando Cosio, Mendez contested his removal, sought termination of proceedings, and indicated his intent to seek waiver of inadmissibility pursuant to 8 U.S.C. § 1182(c) or (h), and cancellation of removal pursuant to 8 U.S.C. § 1229b. The IJ scheduled a hearing for September 29, 2004, and set a filing deadline of August 6, 2004, for any applications for relief. Mendez subsequently hired a new attorney, Clifton Davis, and, on July 28, 2004, Davis filed a motion to substitute in as attorney of record and a request to continue the September hearing and to extend the deadlines to submit Mendez’s applications for relief. Davis stated in the motion that Mendez retained him on July 28, 2004, and that Davis had been out of the" }, { "docid": "22638914", "title": "", "text": "to reopen the removal proceedings, asserting in her pleadings that she had never received notice of the August 29, 2000 hearing date. The IJ denied the motion, citing the presumption that public officers discharge their duties. The IJ found that Salta had not met her burden with respect to the affirmative defense of non-delivery. The BIA dismissed her appeal for similar reasons, and also noted that counsel had not been sent a notice of the hearing because he had failed to file a Notice of Appearance prior to the issuance of the in absentia order of removal. This timely appeal followed. Standard of Review We review the denial of a motion to reopen or reconsider for abuse of discretion. Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). Discussion I. Notice to Salta If an'alien is provided proper written notice of a removal proceeding and fails to attend, the immigration judge is required to enter an in absentia order of removal. 8 U.S.C. § 1229a(b)(5)(A). Such an order may be rescinded only if the alien demonstrates one of the following: (1) that the failure to appear was because of exceptional circumstances (such as serious illness or death of an immediate family member), (2) that she did not receive notice of the removal hearing, or (3) that she was in custody and the failure to appear was through no fault of her own. 8 U.S.C. § 1229a(b)(5)(C). Salta’s motion to reopen was based on a lack of notice. The issue before us is what Salta must do to “demonstrate[ ] that [she] did not receive notice.” Id. Salta asserted in her pleadings that she did not receive the notice, but did not file any supporting documentation. The IJ found this insufficient, determining that Salta should have presented “substantial and probative evidence, such as documentary evidence from the Postal Service, third party affidavits or similar evidence demonstrating that improper delivery.” The requirement applied by the IJ is derived from In re Grijalva, 211 & N Dec. 27, 1995 WL 314388 (BIA 1995). Grijalva involved the predecessor statute, Section 242B of the Immigration" }, { "docid": "23558655", "title": "", "text": "courts to the courts of appeals, and further provided that the mandatory 30-day time period for filing a petition for review, 8 U.S.C. § 1252(b)(1), shall not apply to transferred cases. See Kamara v. U.S. Attorney General, 420 F.3d 202, 210 (3d Cir.2005). Accordingly, our jurisdiction extends to both the August 25, 2004 and November 10, 2004 decisions of the BIA, cf. Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (Congress envisioned two separate timely petitions for review), and the Attorney General does not contend otherwise. Cabrera appeals the decision of the Board of Immigration Appeals upholding both the IJ’s order of removal in absentia and order denying her motion to reopen, and she contends that her 1-751 waiver petition has merit. The BIA concluded that Cabrera had failed to appear at the August 11, 2003 hearing, and it agreed with the IJ that she was required to demonstrate “exceptional circumstances” to justify reopening the hearing, and that she had not done so. Now appearing pro se once again, Cabrera contends in the main that her tardiness does not rise to the level of a failure to appear. We review the denial of a motion to reopen a removal order entered in absentia for abuse of discretion, Immigration & Naturalization Serv. v. Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992), but we review de novo the legal question whether Cabrera’s due process rights were violated. See Chong v. Immigration & Naturalization Serv., 264 F.3d 378, 386 (3d Cir.2001). The Fifth Amendment’s due process protections apply to aliens in removal proceedings. See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). In the context of an immigration hearing, due process requires that aliens threatened with removal are provided the right to a full and fair hearing that allows them a reasonable opportunity to present evidence on their behalf. See Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir.2003); Chong, 264 F.3d at 386. The importance of a meaningful opportunity to be heard can" }, { "docid": "22384738", "title": "", "text": "PER CURIAM: Carolina Arrieta, a native and citizen of the Philippines, petitions pro se for review of the decision of the Board of Immigration Appeals (“BIA”), dismissing her appeal from the Immigration Judge’s (“IJ”) denial of her motion to reopen deportation proceedings. The IJ entered an order of deportation in absentia when Arrieta failed to appear at the scheduled deportation hearing. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we grant the petition for review. Arrieta contends that she failed to appear for her deportation hearing because she never received notice of the deportation hearing as required by section 242B of the Immigration and Nationality Act (“the Act” or “INA”), 8 U.S.C. § 1252b(a)(2). As the BIA indicated in its decision, the IJ ordered Ar-rieta deported after an in absentia hearing because notice of the deportation hearing was sent to Arrieta by certified mail to her last known address. The hearing notice was returned to the Office of the Immigration Judge with an indication that delivery was “attempted.” The BIA concluded that Arrie-ta failed to report a change of address to the immigration court, and that the hearing notice sent by certified mail to her last known address was sufficient to establish that she received written notice of the deportation hearing as required by section 242B of the INA. Arrieta contends, however, that although she had changed her residence, she continued to receive mail at the address she had provided. I We review de novo the BIA’s “determination of purely legal questions regarding the requirements of the Immigration and Nationality Act.” Tedeeva v. INS, 88 F.3d 826, 827 (9th Cir.1996); citing Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). We wifi defer to the BIA’s interpretation of the Act when appropriate under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Tedeeva, 88 F.3d at 827. The denial of a motion to reopen is subject to an abuse of discretion standard of review. Hernandez-Vivas v. INS, 23 F.3d 1557, 1561 (9th Cir.1994). Section 242B of the Act" }, { "docid": "4464172", "title": "", "text": "KEARSE, Circuit Judge. Petitioner pro se Angel Amado Santos-Salazar (“Santos”), an alien who has been ordered removed from the United States pursuant to, inter alia, 8 U.S.C. § 1182(a)(2)(A)(i)(II) on the ground that he has been convicted of a controlled-substance offense, has petitioned this Court for review of an order of the United States Board of Immigration Appeals (“BIA”) denying his motion for reconsideration of a BIA order denying his motion to reopen the removal proceedings. Santos has moved in this Court for, inter alia, a stay of removal pending our consideration of his petition. The government opposes Santos’s motion for a stay and has cross-moved for dismissal of the petition for review, contending that this Court lacks subject matter jurisdiction. The government’s motion is granted. Because this Court would lack jurisdiction to review the underlying order of removal and the order denying Santos’s motion to reopen, we also lack jurisdiction to review the BIA order denying reconsideration of its order refusing to reopen the removal proceedings. The following facts are not in dispute. Santos is a citizen of the Dominican Republic; he entered the United States illegally in 1992. In 1999, he was convicted in New York State Supreme Court, Bronx County, of attempted criminal possession of a controlled substance, to wit, cocaine, in the third degree, see N.Y. Penal Law § 220.16 (McKinney 2000). In January 2003, removal proceedings were commenced against Santos by the Immigration and Naturalization Service (which, as of March 1, 2003, was replaced with, respect to such matters by the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement) on the grounds that Santos was (a) an alien present in the United States without having been lawfully admitted, and (b) an alien convicted of a controlled-substance offense. At a hearing before an Immigration Judge (“IJ”), Santos admitted being an alien, entering the United States illegally, and being convicted in 1999 of attempted possession of cocaine. (Hearing Transcript, April 29, 2003 (“Tr.”), at 7.) Accordingly, the IJ found that Santos was subject to removal and that, in light of his admissions, he" }, { "docid": "22176254", "title": "", "text": "WALLACE, Circuit Judge. Zeferino Mendez-Gutierrez petitions for review of the Board of Immigration Appeals’ (Board) denial of his motion to reinstate his asylum application. The Board found that Mendez-Gutierrez had not established a prima facie case for asylum based on a well-founded fear of future persecution. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We deny the petition for review. I Mendez-Gutierrez entered the United States at San Ysidro, California, on December 1, 1989. On February 10, 1997, he submitted an asylum application to the former Immigration and Naturalization Service. Mendez-Gutierrez stated that he was a member of the National Action Party (PAN) in Mexico and was persecuted by the Institutional Revolutionary Party (PRI), which was in power at the time. Mendez-Gutierrez’s asylum application was referred to an immigration judge, and he was served with a Notice to Appear. During the hearing Mendez-Gutierrez, who was represented by counsel, admitted his removability, withdrew his asylum application, and requested cancellation of removal. The immigration judge held Mendez-Gutierrez removable and statutorily ineligible for both cancellation of removal and voluntary departure. The immigration judge also denied Mendez-Gutierrez’s request to reinstate the asylum application that he had previously withdrawn. Mendez-Gutierrez appealed to the Board, arguing that the immigration judge abused her discretion in denying his request to reinstate the withdrawn asylum application. The Board dismissed the appeal, holding that, although the failure to consider the asylum application may have been error, it did not “materially affect the outcome of the case.” According to the Board, Mendez-Gutierrez had not established prima facie eligibility for asylum because he had failed to demonstrate past persecution. Mendez-Gutierrez then petitioned this court for review. In a published opinion, we granted the petition for review. Mendez-Gutierrez v. Ashcroft, 340 F.3d 865 (9th Cir.2003). We first concluded that the Board did not abuse its discretion by requiring Mendez-Gutierrez to show prima facie eligibility for asylum before reopening his application, id. at 869-70, and upheld the Board’s determination that Mendez-Gutierrez had not established past persecution. “We cannot conclude that the unspecified threats against Mendez-Gutierrez were sufficiently menacing to constitute past persecution, as" }, { "docid": "22932236", "title": "", "text": "court. STANDARD OF REVIEW Because the BIA affirmed without opinion, this court directly reviews the immigration judge’s decision as though it were the decision of the BIA. Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir.2003). This court reviews denial of a motion to reopen for abuse of discretion. Varela v. INS, 204 F.3d 1237, 1239 (9th Cir.2000). An immigration judge abuses his discretion when he acts “arbitrarily, irrationally, or contrary to law.” Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000). DISCUSSION The IJ should have recognized that exceptional circumstances justify granting Petitioner’s motion to reopen. In this unusual case, denial of Petitioner’s motion was arbitrary and irrational. Petitioner’s order to show cause was issued before the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) became effective. Therefore, pre-IIRIRA rules regarding motions to reopen apply here. Under § 242B(3) of the Immigration and Nationality Act, the court should grant a motion to reopen an in absentia order where “exceptional circumstances” exist or where the alien was not afforded statutorily required notice. The pre-IIRIRA exceptional circumstances rule allows the court to reopen a ease based on a compelling factual situation. See 8 U.S.C. § 1252b(f)(2) (repealed 1996). The court examines the “particu larized facts presented in each case” to determine if exceptional circumstances exist. Singh, 213 F.3d at 1052. The text of § 1252b(f)(2) suggests that the exceptional circumstances supporting a motion to reopen must relate to the reason for missing the hearing, But we made clear in Singh v. INS, 295 F.3d 1037, 1038-40 (9th Cir.2002), that we consider all exceptional — i.e., compelling — circumstances relevant to a petitioner’s motion to reopen. A motion to reopen may be supported by exceptional circumstances even where the petitioner missed her hearing because of unexceptional circumstances, for instance, misunderstanding the scheduled time of her hearing. Id. Singh presented unusual facts like those presented here. In Singh, the IJ denied a motion to reopen an in absentia deportation order where Singh appeared at 1:00 p.m. for a hearing scheduled two hours earlier, and the BIA affirmed. Id. at 1038-39. On appeal," }, { "docid": "22801530", "title": "", "text": "new evidence); Bolshakov v. INS, 133 F.3d 1279, 1281 (9th Cir.1998) (same). That Mendez-Gutierrez sought to reinstate his asylum application before the IJ issued an order of removal, rather than filing a motion to reopen after the order was issued, does not deprive us of meaningful standards for judicial review of the BIA’s action. Accordingly, we hold that we have jurisdiction to review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his withdrawn application for asylum, as we would over the denial of a motion to reopen. 8 U.S.C. § 1252(b). II. Because we are proceeding by analogy to the standards applicable to the denial of a motion to reopen, we review the BIA’s denial of Mendez-Gutierrez’s request to reinstate his asylum application for abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002) (denial of motion to reopen is reviewed for abuse of discretion). Our review is limited to the grounds on which the BIA based its denial. Martinez-Zelaya v. INS, 841 F.2d 294, 296 (9th Cir.1988). The BIA determined that Mendez-Gutierrez was not prejudiced by the IJ’s refusal to reinstate his asylum application because the application did not demonstrate prima facie eligibility for asylum, as it did not set forth a valid claim of past persecution. As we noted earlier, prima facie eligibility for the relief sought is a prerequisite for the granting of a motion to reopen. See Ramirez-Alejandre, 319 F.3d at 376; In re G-C-L, 23 I. & N. Dec. 359 at 361. It was appropriate for the BIA to apply this requirement to Mendez-Gutierrez’s request for reinstatement, because it would be unreasonable to put the government to the time and expense of an eviden-tiary hearing on a previously terminated application if there is no chance that the application will be successful. The BIA therefore did not abuse its discretion by requiring Mendez-Gutierrez to show pri-ma facie eligibility for asylum. In determining that Mendez-Gutierrez’s application failed to make the required showing, however, the BIA’s inquiry was incomplete. “A person is prima facie eligible for asylum if he can show that he is a" } ]

[ { "docid": "22743355", "title": "", "text": "rested its order upon those findings. • The circumstances occasioning the latter-finding are convincing evidence that the Board not only was required to but did exercise discretion in the formulation of its order of reinstatement. Throughout the hearing the employer’s counsel sought to - show by cross-examining them that the complaining employees were not entitled to reinstatement. Shortly after that examination commenced, the trial, examiner requested the Board’s attorney to state the theory upon which he contended that those employees should be reinstated; Considerable testimony was offered to show the working conditions, hours, rates of pay, continuity of operation, etc., of mines in which the witnesses had secured other employment. All this was in the record certified to the Board. Accompanying it was the contention of the employer that reinstatement should be denied for various reasoils. The Board explicitly considered the contention, among others, that reinstatement would provoke further disputes and discord among the employees rather than promote labor peace. It also considered the contention that many of the employees had obtained other substantially equivalent employment, making both general and specific findings concerning it. Finally, it concluded that the policies of the Act would be effectuated by ordéring the employer to tender reinstatement to designated employees. That its order of reinstatement was more than a perfunctory exercise of power is pointedly manifest from the Board’s own statements. Answering the employer’s contention that reinstatement might foster discord among the employees, the Board declared: “We cannot but consider the difficulties of adjustment envisaged in the foregoing testimony [upon which the employer relied] as conjectural and insubstantial, especially in view of the lapse of time since the strike. However, even assuming that the asserted resentment of non-strikers towards strikers and picketers persists, the effectuation of the policies of the Act patently requires the restoration of the strikers and picketers to their status quo before the discrimination against them.” In discussing its proposed order, the Board said: “Having found that the respondent has engaged in. unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action designed" } ]

[ { "docid": "15235902", "title": "", "text": "NLRB v. Plastilite Corp., 375 F.2d 343, 347, 349-350 (8th Cir. 1967). IV. Finally, we need to review the status of the sixteen employees who were not reinstated by the Company following a three day strike by some forty employees in January of 1970. The Board determined that these individuals were unfair labor practice strikers, and, by unconditionally requesting reinstatement, were entitled to be restored to their pre-strike positions with the Company. Since we have held that the Union was not validly elected as the employees’ bargaining representative, we must characterize these sixteen employees as economic strikers. As economic strikers, they were not entitled to reinstatement if their former positions and all equivalent positions had been filled by permanent replacements. NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345-356, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Upon application, however, they were entitled to reinstatement as positions for which they were qualified became available, the burden being on the employer to show that its refusal to reinstate rested upon “legitimate and substantial business justifications.” NLRB v. Fleetwood Trailer Co., Inc., 389 U.S. 375, 378-79, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34, 87 S.Ct. 1792, 18 L.Ed.2d 1027 (1967); Little Rock Airmotive, Inc. v. NLRB, 455 F.2d 163 (8th Cir. 1972). The Board in the instant case approved the trial examiner’s findings that “[t]here is no evidence, indeed Respondent [employer] does not contend, that [the employees’] prestrike jobs were no longer in existence * * In addition, the Company offers no justification in its brief for its refusal to reinstate these employees. Accordingly, we think it immaterial on this record whether the Board classified the sixteen employees in question as unfair labor practice strikers rather than economic strikers. They were entitled to reinstatement in either event, and the Company’s failure to reinstate them immediately to their prior positions constituted an unfair labor practice in violation of § 8(a) (3) and (l). See Little Rock Airmotive, Inc. v. NLRB, supra, 455 F.2d at 167-68 (8th Cir. 1972). In First National Bank" }, { "docid": "23072082", "title": "", "text": "Brown & Root and many others of like import. Even though Mac-kay is not mentioned in Fleetwood other than above noted, the Board uses Fleet-wood as justification for an interpretation of Mackay which is far different from that given it by the Board and the courts, including this court, in many cases over a period of thirty years. In my opinion, the Board has misused both Fleetwood and Mackay. Two cases decided since Fleetwood so indicate. The Sixth Circuit, in Dayton Food Fair Stores, Inc. v. National Labor Relations Board, 6 Cir., 399 F.2d 153, 154, stated: “While it is clear that an employer may permanently replace economic strikers, he may not fire a striking employee unless a permanent replacement has been employed. N. L. R. B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Following an economic strike, employees are entitled to return to their jobs unless ‘legitimate and substantial business justifications’ dictate otherwise.” The Fourth Circuit, in National Labor Relations Board v. Stevenson Brick and Block Company, 393 F.2d 234, 239, stated: “As economic strikers, employees are entitled to reinstatement unless permanent replacements have been hired during the strike. If vacancies remain, they must be filled from the ranks of the strikers without anti-union discrimination. NLRB v. Mackay Radio & Telegraph Co., supra. In the absence of any evidence or even a claim that the jobs sought by these strikers were still open at the time they requested reinstatement, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1968), that portion of the Board’s order requiring reinstatement will not be enforced.” Even the Board, in a decision following Fleetwood, Hill Engineering, Inc., 171 NLRB 75 (1968), cites Mackay for the statement, “A striking employee retains his employee status and is entitled to reinstatement to his job absent persuasive evidence of permanent replacement.” I need do little more than mention the Board’s theory that in any event" }, { "docid": "23072035", "title": "", "text": "On this point the Court said: It was clearly error to hold that the right of the strikers to reinstatement expired on August 20, when they first applied. This basic right to jobs cannot depend upon job availability as of the moment when the applications are filed. The right to reinstatement does not depend upon technicalities relating to application. On the contrary, the status of the striker as an employee continues until he has obtained “other regular and substantially equivalent employment.” (29 U.S.C. § 152(3).) Frequently a strike affects the level of production and the number of jobs. It is entirely normal for striking employees to apply for reinstatement immediately after the end of the strike and before full production is resumed. If and when a job for which the striker is qualified becomes available, he is entitled to an offer of reinstatement. The right can be defeated only if the employer can show “legitimate and substantial business justifications.” NLRB v. Great Dane Trailers. NLRB v. Fleetwood Trailer Co., 389 U.S. at 380-381, 88 S.Ct. at 547. In defense of its position, Laidlaw contends that permanent replacement of economic strikers constitutes a legitimate and substantial justification for not offering the strikers reinstatement. Once jobs are filled by “permanent” employees during an economic strike, the company maintains that the strikers have no right to reinstatement even though the replacements depart from their jobs. For support of this proposition, the company relies on the Fleetwood decision and NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Its reliance is misplaced. In Mackay, the Supreme Court was faced with a situation where all but five of the employees who had struck for higher wages were rehired after the strike ended. The Board had found the employer guilty of an unfair labor practice because it had failed to reinstate these five strikers, holding that this failure was motivated by antiunion animus. The Supreme Court, in reversing the Ninth Circuit, affirmed the Board. The Court made it clear, however, that the basis of its holding was the" }, { "docid": "15258561", "title": "", "text": "the Laidlaw decision demanded. The order contained cease and desist provisions and directions for reinstatement and backpay consistent with these conclusions. Challenging the order, Binch contends that it had replaced all fifteen March 15 strikers by 2:00 P.M. on March 16, or at least believed in good faith that it had; that the March 15 strikers did not make an unconditional offer to return to work on March 16; that, for both these reasons, the Board erred in concluding that the March 18 strike was an unfair labor practice strike and in ordering relief with respect to March 18 strikers which would be appropriate only on that basis; that the Laidlaw decision was unwarranted ; and that, in any event, it should not be retroactively applied in this case. We sustain only some of these contentions. II. The principles governing the rights and duties of an employer with respect to economic strikers were early enunciated in NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). After stating that such strikers remained “employees” under § 2(3) of the Act, Mr. Justice Roberts continued: Nor was it an unfair labor practice to replace the striking employes with others in an effort to carry on the business. Although § 13 provides, “Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike,” it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the place of strikers, upon the election of the latter to resume their employment, in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to" }, { "docid": "22600189", "title": "", "text": "to brief, two or three sentence descriptions, typically devoted mostly to the parties’ positions on the wage issue; and the ALJ notes that regarding the September 14 and 15 meetings “[t]here is almost no evidence.” By contrast, in Alba-Waldensian, the Trial Examiner’s decision on which the Board’s opinion was based included a painstakingly detailed review of all 22 negotiating sessions; a review which fills 34 double-column, small-print pages in the NLRB Reports. For all the above reasons, we reverse the Board’s finding that petitioners were guilty of an unlawful course of conduct in violation of § 8(a)(5) and (1). X. Denial of Immediate Reinstatement Pursuant to his finding that the company’s unfair labor practices had prolonged and converted the strike, the ALJ found that the . .. persons named in paragraph 20 of the complaint for whom the Union unconditionally applied for reinstatement, and to whom the Respondent on March 25, 1977, refused reinstatement, are unfair labor practice strikers, and that by refusing reinstatement to them the Respondent violated Section 8(a)(1) and (3) of the Act. The basic issue is whether the strike was an “economic” strike or an “unfair labor practice” strike at the time the permanent striker replacements were hired. There is no dispute that the strike began as an economic strike in support of the union’s wage and other contract demands. Therefore the question is whether the strike was converted to an unfair labor practice strike by the employer’s subsequent conduct, and if so, when. A. The Nature of the Strike The distinction between economic and unfair labor strikers determines reinstatement rights: It is settled that an employer may refuse to reinstate economic strikers if in the interim he has taken on permanent replacements. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, [58 S.Ct. 904, 910-911, 82 L.Ed. 1381]. It is equally settled that employees striking in protest of an employer’s unfair labor practices are entitled, absent some contractual or statutory provision to the contrary, to unconditional reinstatement, with back pay, “even if replacements for them have been made.” Mastro Plastics Corp. v. NLRB," }, { "docid": "23072083", "title": "", "text": "and substantial business justifications’ dictate otherwise.” The Fourth Circuit, in National Labor Relations Board v. Stevenson Brick and Block Company, 393 F.2d 234, 239, stated: “As economic strikers, employees are entitled to reinstatement unless permanent replacements have been hired during the strike. If vacancies remain, they must be filled from the ranks of the strikers without anti-union discrimination. NLRB v. Mackay Radio & Telegraph Co., supra. In the absence of any evidence or even a claim that the jobs sought by these strikers were still open at the time they requested reinstatement, see NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1968), that portion of the Board’s order requiring reinstatement will not be enforced.” Even the Board, in a decision following Fleetwood, Hill Engineering, Inc., 171 NLRB 75 (1968), cites Mackay for the statement, “A striking employee retains his employee status and is entitled to reinstatement to his job absent persuasive evidence of permanent replacement.” I need do little more than mention the Board’s theory that in any event it is entitled to enforcement of its order on the ground that the company had an anti-union motivation for failing to reinstate the striking employees. In support of this point the Board on brief states, “This alternative holding, unlike the application of Fleetwood discussed, supra, involves no change in the law but rather invokes the traditional doctrine that strikers whose employment status has been terminated, like all new applicants for employment, are entitled to be considered on a nondiscriminatory basis.” Cases cited in support of this point, such as Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271, and National Labor Relations Board v. Albritton Engineering Corp., 5 Cir., 340 F.2d 281, involved situations where the applicant for employment had never been an employee or, if he had, his employment had been terminated. There is no merit in this contention. The short answer to the Board’s argument on this point is that not a single striker made application to be rehired ; their applications in each instance" }, { "docid": "7552738", "title": "", "text": "Examiner found that the Board’s decision in Laid-law Corporation, 171 NLRB No. 175 (1968), enforcement granted, 7 Cir. 1969, 414 F.2d 99, cert. denied, 1970, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100, required the Company to offer the strikers positions which became vacant and for which they qualified. In Laidlaw the Board held that “economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or * * * the failure to offer full reinstatement was for legitimate and substantial business reasons”. 171 NLRB No. 175, 68 L.R.R.M. 1252, 1258. The examiner ruled that American Machinery’s treatment of the strikers as new employees with loss of seniority violated section 8(a) (1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) and (3), in that it penalized the strikers for engaging in a protected concerted and union activity. Furthermore, he found violations of the same section in that the failure to reinstate the strikers had the discriminatory purpose of preventing the Union from regaining representative status. Consequently, the Trial Examiner ordered reinstatement for all but three of the strikers listed in the complaint, with seniority and back pay as of the date upon which they should have been reinstated. January 16, 1969, the Board adopted the Trial Examiner’s findings, conclusions, and recommendations. This matter is before us on the Company’s petition to review and set aside the order and the Board’s cross-application for enforcement. II. The background of the Board’s present posture must be considered. NLRB v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, held that section 8 of the National Labor Relations Act prohibits an employer from discriminating on the basis of union activities in its reemployment of striking workers. The real significance of the case in this controversy, however, is its oft-quoted dictum that Although § 13 [29 U.S.C.A. § 163] provides," }, { "docid": "16507174", "title": "", "text": "at p. 48. We agree. The Board found that the Company had unlawfully refused to rehire — as opposed to reinstate — Gregory and Merryman and, therefore, modified Upton’s decision by ordering their reinstatement. Likewise, AU Lipton ordered and the Board affirmed the reinstatement of Eloise Turberville, a Frisco employee who had been terminated for cause prior to the strike. It was reasoned that she had been repeatedly refused reemployment in violation of the Act because she had engaged in picketing activity. JA Vol. I, p. 81; Lipton decision at p. 70. As noted above, as a lawfully discharged employee, Turberville has no right to reinstatement. The question is whether the Board is precluded from finding that Marlene failed to rehire Gregory, Merryman and Turberville because General Counsel did not specifically plead that offense. In the case of a minor variation from the charge in the complaint, failure to specifically plead an offense does not preclude finding a violation thereof. See NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 349-50, 58 S.Ct. 904, 912-13, 82 L.Ed. 1381 (1938). Failure to reinstate strikers, however, is quite a different offense from discrimination in hiring. NLRB v. Pepsi-Cola Bottling Co. of Topeka, 613 F.2d 267, 273 (10th Cir.1980). On remand it must be determined whether the issue of “failure to hire” was fully and fairly litigated. If so, there is substantial evidence on the record to support the Board’s findings that Marlene failed to rehire. If not, the Board is precluded from finding Marlene committed that offense. Cf. NLRB v. Johnson, 322 F.2d 216, 220 (6th Cir.1963) (where the issue of discriminatory discharge was found not to have been fully and fairly litigated). . The Union notified the Company by letter dated September 4, 1974, that seven strikers [Mae Rushing, Blanche Averett, Ben Hamm (not included in complaint), Sue Scott, Helen (Eason) Rhodes, Zora Quinn, and Susie Stout] had decided to continue the strike. By a letter dated September 20, 1974, the Union indicated that all strikers, including the seven previously declining to abandon the strike, would return to work on" }, { "docid": "7970821", "title": "", "text": "NLRB v. Pope Maintenance Corp., 573 F.2d 898, 906 (5th Cir. 1978); NLRB v. Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704 (7th Cir. 1976). The Board fairly read the record here when it concluded that the employees’ purpose in striking the Company was only to gain recognition for the Union and not to redress the unfair labor practices that had occurred before September 21, 1977. For our present purposes, the rights of the strikers to reinstatement after their unconditional offer to return to work on November 14 were therefore the rights of economic strikers. As economic strikers, the employees were not entitled to immediate reinstatement if they had been permanently replaced by substitute workers hired during the strike. E.g., NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). On the other hand, the strikers were entitled to reinstatement to any vacancies existing when they made their un conditional offers to return or to any vacancies resulting from a subsequent departure of permanent replacements or from an expansion of the Company’s operations. E.g., NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 380-81, 88 S.Ct. 543, 546-47, 19 L.Ed.2d 614 (1967); Retail, Wholesale & Department Store Union v. NLRB, 466 F.2d 380, 387-88 (D.C.Cir.1972); Laidlaw Corp., 171 N.L.R.B. 1366, 1368-70 (1968), enforced, 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L.Ed.2d 100 (1970). The employer bears the burden of showing that the economic strikers were permanently replaced and that no jobs subsequently became available, or that other legitimate business reasons existed for denying reinstatement. NLRB v. Fleetwood Trailer Co., 389 U.S. at 378, 88 S.Ct. at 545; NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34-35, 87 S.Ct. 1792, 1797-1798, 18 L.Ed.2d 1027 (1967); Laidlaw Corp., 171 N.L.R.B. at 1369. The Board found that the Company failed to carry its burden regarding the reinstatement of the striking employees in this case. By its own admission, the Company’s evidence was incomplete and did not even indicate the total number of bargaining unit employees" }, { "docid": "23072081", "title": "", "text": "the company was confronted with a second strike, the object of which was to require it to reinstate all strikers. Those employees who were reinstated or offered reinstatement refused to work until the strike objective was met. Obviously, the Supreme Court had no such factual situation in Fleetwood and, in my view, it is not controlling. Any doubt on this score is resolved by the court’s statement in Fleetwood (389 U.S. page 379, 88 S.Ct. page 546): “In some situations, ‘legitimate and substantial business justifications’ for refusing to reinstate employees who engaged in an economic strike have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 [58 S.Ct. 904, 910-911, 82 L.Ed. 1381] (1938); NLRB v. Plasti-lite Corp., 375 F.2d 343 (C.A.8th Cir. 1967); Brown & Root, 132 N.L.R.B. 486 (1961).” Notwithstanding the court’s approval of the cited cases, the Board now rejects its decision in Brown & Root and many others of like import. Even though Mac-kay is not mentioned in Fleetwood other than above noted, the Board uses Fleet-wood as justification for an interpretation of Mackay which is far different from that given it by the Board and the courts, including this court, in many cases over a period of thirty years. In my opinion, the Board has misused both Fleetwood and Mackay. Two cases decided since Fleetwood so indicate. The Sixth Circuit, in Dayton Food Fair Stores, Inc. v. National Labor Relations Board, 6 Cir., 399 F.2d 153, 154, stated: “While it is clear that an employer may permanently replace economic strikers, he may not fire a striking employee unless a permanent replacement has been employed. N. L. R. B. v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); National Labor Relations Board v. Mackay Radio & Telegraph Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Following an economic strike, employees are entitled to return to their jobs unless ‘legitimate" }, { "docid": "12037420", "title": "", "text": "for the proposition that unreinstated strikers retain the right to reinstatement until such time as they accept other, substantially equal, employment. Here, however, the employer’s seniority policy provides for a preferential hiring list which assures qualified strikers that they will be rehired ahead of any new applicants. Thus, the conduct the Fleet-wood and Laidlaw courts found unlawful is not alleged in this case. The Board further asserts that a line of NLRB decisions establishes a uniform rule that unreinstated strikers have a right to reinstatement when a vacancy occurs. MCC Pacific Valves, 244 NLRB 931 (1979); Wisconsin Packing Co., 231 NLRB 546 (1977). While we agree with the Board’s summary of these decisions, we do not believe that they apply in this case. A layoff, by definition, is not a termination of the employment relationship. The employee retains his or her status as an employee, but is placed in an “inactive” status for the period of the layoff. There is, therefore, no creation of a “vacancy” in the work force which would entitle a striker to reinstatement, under either the Board’s decisions or the court decisions examined above. Thus, none of the authorities cited by the Board support a departure from the Mack-ay rule in this case. The seniority system does not discriminate between strikers and non-strikers, nor does it deny unreinstated strikers the right to reinstatement should vacancies occur in the work force. Rather, it constitutes the very practice upheld in Mackay: the assurance of permanent status to replacement workers. Ill We hold, therefore, that an employer does not violate §§ 8(a)(1) and (3) of the Act by promulgating rules providing that members of the existing work force will be rehired in order of seniority, but before unreinstated strikers, in the event of a layoff. The Board’s petition for enforcement of its order is DENIED. . By June of 1979, the employer’s work force consisted of 258 reinstated strikers, 22 strikers who had returned to work during the course of the strike, and 229 replacement workers. . For economic and administrative reasons, the work force after the strike was" }, { "docid": "12017122", "title": "", "text": "neither supports the companies’ joint employers arguments: the Army did not exercise substantial control over the appellants’ labor relations. The appellants’ “intimate relationship” argument fails for the same reasons. Finally, to the extent the appellant is arguing that the Board in the exercise of its discretion should have abstained from exercising its jurisdiction we need only say that no “extraordinary circumstances” exist in this case. III. REINSTATEMENT An employer must reinstate an economic striker who offers unconditionally to return to work, unless the employer has a substantial and legitimate business reason for refusing to do so. NLRB v. International Van Lines, 409 U.S. 48, 50-51, 93 S.Ct. 74, 76, 34 L.Ed.2d 201 (1972); NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-911, 82 L.Ed. 1381 (1939). But during a strike the employer has the right to hire replacements, and continued employment of a permanent replacement is an adequate reason for refusing to reinstate the striker whose position has been filled. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 379, 88 S.Ct. 543, 546, 19 L.Ed.2d 614 (1967). Whether the employer has permanently replaced a striker is a factual question, and the Board’s finding in that regard is reviewable under the “substantial evidence” standard of section 10(e), 29 U.S.C. § 160(e) (1976). NLRB v. Murray Products, Inc., 584 F.2d 934, 939 (9th Cir. 1978). Although the administrative law judge found that all but two of the strikers had been permanently replaced when the offers to return to work were made, the Board disagreed. It held that twelve others should have been promptly reinstated. In support of its conclusion, the Board found that the administrative law judge (1) erred in not placing upon [the companies] their burden of proving that the strikers had been permanently replaced; (2) ignored, or gave insufficient weight to, admissions in the record that [the companies] utilized temporary replacements for the strikers; (3) improperly failed to draw an adverse inference from [the companies’] failure to produce subpoenaed records regarding striker replacements; and (4) analyzed incorrectly and gave insufficient weight to evidence that" }, { "docid": "23072036", "title": "", "text": "at 547. In defense of its position, Laidlaw contends that permanent replacement of economic strikers constitutes a legitimate and substantial justification for not offering the strikers reinstatement. Once jobs are filled by “permanent” employees during an economic strike, the company maintains that the strikers have no right to reinstatement even though the replacements depart from their jobs. For support of this proposition, the company relies on the Fleetwood decision and NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1938). Its reliance is misplaced. In Mackay, the Supreme Court was faced with a situation where all but five of the employees who had struck for higher wages were rehired after the strike ended. The Board had found the employer guilty of an unfair labor practice because it had failed to reinstate these five strikers, holding that this failure was motivated by antiunion animus. The Supreme Court, in reversing the Ninth Circuit, affirmed the Board. The Court made it clear, however, that the basis of its holding was the employer’s antiunion motivation and that the Act did not require an employer to discharge permanent striker replacements. The Court said that it is not “an unfair labor practice to replace the striking employees with others in an effort to carry on the business”; that the employer retains “the right to protect and continue his business by supplying places left vacant by strikers”; and that the employer “is not bound to discharge those hired to fill the place of strikers, upon the election of the latter to resume their employment, in order to create places for them.” 304 U.S. at 345-346, 58 S.Ct. at 910-911. In conclusion, the Court said that so long as the employer was not antiunion motivated, he might “resort to any one of a number of methods of determining which of its striking employees would have to wait because [other] men had taken permanent positions during the strike.” 304 U.S. at 347, 58 S.Ct. at 911. (Emphasis added.) In Fleetwood, the Supreme Court said that “unless the employer who refuses to reinstate" }, { "docid": "22733697", "title": "", "text": "issues was executed on July 17, and an accompanying settlement agreement was signed providing that the company’s replacement and job assurance policy should be resolved by the National Labor Relations Board and the federal courts but was to remain in effect pending final disposition. Following the strike’s termination, the company reinstated those strikers whose jobs had not been filled (all but 129 were returned to their jobs). At about the same time,' the union received some 173 resignations from membership. By September of 1959, the production unit work force had reached a high of 442 employees, but by May of 1960, the work force had gradually slipped back to 240. Many employees laid off during this cutback period were reinstated strikers whose seniority was insufficient to retain their jobs as a consequence of the company’s super-seniority policy. The union filed a charge with the National Labor Relations Board alleging.that awarding super-seniority during the course of the strike constituted an unfair labor practice and that the subsequent layoff of the recalled strikers pursuant to such a plan was unlawful. The Trial Examiner found that the policy was promulgated for legitimate economic reasons; not for illegal or discriminatory purposes, and recommended that the union’s complaint be dismissed. The Board could not agree with the Trial Examiner’s conclusion that specific evidence of subjective intent to discriminate against the union was necessary to finding that super-seniority granted during a strike is an unfair labor practice. Its consistent view, the Board said, had always been that super-seniority, in circumstances such as these, was an unfair labor practice. The Board rejected the argument that super-seniority granted during a strike is a legitimate corollary of the employer’s right of replacement under Labor Board v. Mackay Radio & Tel. Co., 304 U. S. 333, and detailed at some length the factors which to it indicated that “superseniority is a form of discrimination extending far beyond the employer’s right of replacement sanctioned by Mackay, and is, moreover, in- direct conflict with the express provisions of the Act prohibiting discrimination.” Having put aside Mackay, the Board went on to deny" }, { "docid": "7970820", "title": "", "text": "the strike which followed resulted both from the employer’s refusal to bargain and from the pre-strike unfair labor practices. On this basis, the A.L.J. characterized the strike as an unfair labor practice strike from its inception. The Board rejected this characterization, stating: “Board law holds that an unfair labor practice strike does not result merely because unfair labor practices precede the strike. Rather, there must be a causal connection between the two events which demonstrates that the strike is the direct outcome of the unfair labor practices.” John Cuneo, Inc., 253 N.L.R.B. at 1026. The Board found nothing in the record to indicate that the employees were striking for any reason other than to gain recognition of the Union as their bargaining representative. We agree with the Board’s characterization of the strikers’ initial purpose as recognition. A lawful strike for union recognition is an economic strike, unless unfair labor practices committed by the employer are a “contributing cause” of the strike. Mere awareness of unfair labor practices is insufficient to establish this causal connection. E.g., NLRB v. Pope Maintenance Corp., 573 F.2d 898, 906 (5th Cir. 1978); NLRB v. Colonial Haven Nursing Home, Inc., 542 F.2d 691, 704 (7th Cir. 1976). The Board fairly read the record here when it concluded that the employees’ purpose in striking the Company was only to gain recognition for the Union and not to redress the unfair labor practices that had occurred before September 21, 1977. For our present purposes, the rights of the strikers to reinstatement after their unconditional offer to return to work on November 14 were therefore the rights of economic strikers. As economic strikers, the employees were not entitled to immediate reinstatement if they had been permanently replaced by substitute workers hired during the strike. E.g., NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-46, 58 S.Ct. 904, 910-11, 82 L.Ed. 1381 (1938). On the other hand, the strikers were entitled to reinstatement to any vacancies existing when they made their un conditional offers to return or to any vacancies resulting from a subsequent departure of permanent replacements" }, { "docid": "6015165", "title": "", "text": "order of the Board, to reinstate the strikers with back wages, less the amounts earned by them while on strike.” International Union of Electrical, Radio and Machine Workers, Local 613 v. NLRB, 328 F.2d 723, 726 (3 Cir. 1964). Thus, the policy underlying the remedy of reinstatement is that an employer who engages in unfair labor practices, and not the strikers, should suffer the consequences if the strike should be prolonged by the unfair labor practice. In the case at bar there could have been no consequences arising from the single act of Frick’s removing the names of the strikers from the payroll. It was only after the contents of the letter of July 8, presumably received by the employees on July 9, were communicated to the strikers could any consequence arise from Frick’s unfair labor practice for obviously it was only then that the strike could have been prolonged because of the unfair labor practice. The Trial Examiner, despite the remedy he ordered, specifically stated, “this unlawful conduct [putting the strikers’ names in the “Quit” file] could not have become an operative factor in prolonging the strike until July 9 or thereafter, and I so find.” Joint Appendix, p. 56a, n. 45. Prior to July 9 Frick was free to permanently replace any of the striking employees. NLRB v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345-346, 58 S.Ct. 904, 82 L.Ed 1381 (1938). Therefore, we will not enforce that part of the Board’s order which requires Frick to reinstate those employees who were replaced prior to July 9 and to make such employees whole for refusal, if any, to reinstate them. We will grant partial enforcement of the Board’s order to the extent stated in this opinion. . We have used the term “dropping” advisedly. Actually what the Prick Company did was to transfer certain union employees’ names from its active payroll file to its inactive “Quit” file. . Prick was also charged with refusal to bargain in good faith in violation of Section 8(a) (5) of the Act but the Trial Examiner found against such a" }, { "docid": "23072080", "title": "", "text": "while the jobs were there, they were not open at the moment; however, the company intended as rapidly as possible to increase production to its pre-strike level and to increase the number of its employees accordingly. Some two months later, instead of offering reinstatement to the six strikers, the company hired six new employees, which the court held was a violation of the Act. The facts in the instant case are a far cry from those in Fleetwood. Here, all during the first and second strikes the company operated its business on a pre-strike level, and the number of its employees remained substantially constant. When the union on February 11 made its unconditional demand that all strikers be reinstated immediately, all but five of their places had been permanently filled and the company immediately reinstated strikers to those places. The Examiner found and the Board agreed that the company was in compliance with the Act at that time. The vacancies in dispute were those caused by the replacement employees leaving their jobs. More than that, the company was confronted with a second strike, the object of which was to require it to reinstate all strikers. Those employees who were reinstated or offered reinstatement refused to work until the strike objective was met. Obviously, the Supreme Court had no such factual situation in Fleetwood and, in my view, it is not controlling. Any doubt on this score is resolved by the court’s statement in Fleetwood (389 U.S. page 379, 88 S.Ct. page 546): “In some situations, ‘legitimate and substantial business justifications’ for refusing to reinstate employees who engaged in an economic strike have been recognized. One is when the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations. NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 [58 S.Ct. 904, 910-911, 82 L.Ed. 1381] (1938); NLRB v. Plasti-lite Corp., 375 F.2d 343 (C.A.8th Cir. 1967); Brown & Root, 132 N.L.R.B. 486 (1961).” Notwithstanding the court’s approval of the cited cases, the Board now rejects its decision in" }, { "docid": "14687832", "title": "", "text": "completed their final training flights within two days after the strike, they did not perform services within a reasonable period of time and could not be considered permanent replacements. TWA appeals this holding in No. 86-2197. The district court also held that the cross-overs and new hires were entitled to retain their jobs as against the claims of strikers. The Union appeals this holding in No. 86-2319. We affirm the determination that those flight attendants holding a trainee status at the end of the strike may not be retained over striking employees. We also affirm the district court’s ruling that new hires may retain their jobs as against the claims of strikers. We reverse, however, as to cross-overs. They may not retain their positions as against strikers with greater seniority. II. DISCUSSION Employees who are not working because of a labor dispute remain “employees” of the employer unless they obtain other work. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, 88 S.Ct. 543, 545, 19 L.Ed.2d 614 (1967); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345, 58 S.Ct. 904, 910, 82 L.Ed. 1381 (1938). When the labor dispute is economic in nature, however, the employer may hire permanent replacements for strikers in order to continue business operations. Mackay Radio, 304 U.S. at 345-46, 58 S.Ct. at 910-11. Once an employer hires permanent replacements, economic strikers are entitled to reinstatement only as vacancies occur. The employer is not required to discharge permanent replacements in order to rehire striking employees. Id. A. New Hires The district court held that the 1220 “new hires” who started work on and after March 7, 1986 were employed as permanent replacements and not as additions to the workforce. The district court reached its conclusion by considering the circumstances in which they were hired. The court noted that although TWA anticipated a need for new attendants regardless of a strike, once the strike began, TWA made clear that it was hiring new flight attendants to replace strikers. The new hires crossed picket lines to receive formal offers of employment and TWA had earlier" }, { "docid": "7552739", "title": "", "text": "activity. Furthermore, he found violations of the same section in that the failure to reinstate the strikers had the discriminatory purpose of preventing the Union from regaining representative status. Consequently, the Trial Examiner ordered reinstatement for all but three of the strikers listed in the complaint, with seniority and back pay as of the date upon which they should have been reinstated. January 16, 1969, the Board adopted the Trial Examiner’s findings, conclusions, and recommendations. This matter is before us on the Company’s petition to review and set aside the order and the Board’s cross-application for enforcement. II. The background of the Board’s present posture must be considered. NLRB v. Mackay Radio & Telegraph Co., 1938, 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381, held that section 8 of the National Labor Relations Act prohibits an employer from discriminating on the basis of union activities in its reemployment of striking workers. The real significance of the case in this controversy, however, is its oft-quoted dictum that Although § 13 [29 U.S.C.A. § 163] provides, “Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike,” it does not follow that an employer, guilty of no act denounced by the statute, has lost the right to protect and continue his business by supplying places left vacant by strikers. And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them. The assurance by respondent to those who accepted employment during the strike that if they so desired their places might be permanent was not an unfair labor practice nor was it such to reinstate only so many of the strikers as there were vacant places to be filled. 304 U.S. at 345-346, 58 S.Ct. at 910-911, 82 L.Ed. at 1390 (Citations omitted). And later in the opinion, the respondent was not bound to displace men hired to take the strikers’ places in order to provide positions for them." }, { "docid": "12536495", "title": "", "text": "vacancies occurred after November 4, 1966. He found that enough such vacancies had developed by June 21, 1967 to meet this obligation. The Board in its opinion dealt with the matter in these terms: We have found in agreement with Trial Examiner Goerlich that the Respondent discriminatorily refused to recall and reinstate strikers to available job openings during the period from November 4, 1966, to June 21, 1967, and in order to remedy these unfair labor practices, we shall order the Respondent to offer immediate and full reinstatement to the employees listed on Appendix B attached to this Decision discharging, if necessary, any employee hired after the date of the discrimination against each striker, respectively. . . . We shall also order the Respondent to make these employees whole for any loss of pay suffered by reason of the discrimination against them from the date they should have been so reinstated to the date of valid offers of reinstatement. Prior to the decision of the Board in Laidlaw on June 13, 1968, it was a well settled rule, enunciated and applied by the Board, that when an employer permanently replaced an economic striker, he was under no obligation thereafter to treat that striker other than as a new applicant for employment. Although he was not permitted to discriminate against a former striker on the basis of his prior protected activity, he was not obliged actively to seek out and to offer former strikers reinstatement in preference to other applicants, or to accord rehired strikers their full former accrued rights and pay. Relying largely on the Supreme Court’s opinion in NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967), the Board in Laidlaw overturned this rule, and held that former strikers, although not entitled to reinstatement in preference to replacements permanently hired during the strike, are entitled to offers of reinstatement to vacancies resulting from the subsequent departure of permanent replacements; and they remain so entitled until they have obtained “other regular and substantially equivalent employment.” Applying the Laidlaw rule, the Board in this case" } ]

[ { "docid": "22533789", "title": "", "text": "S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have suffered or be imminently threatened with a concrete and particularized \"injury in fact\" that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision. Ibid. Lexmark does not deny that Static Control's allegations of lost sales and damage to its business reputation give it standing under Article III to press its false-advertising claim, and we are satisfied that they do. Although Static Control's claim thus presents a case or controversy that is properly within federal courts' Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control's claim on grounds that are \"prudential,\" rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that \"a federal court's 'obligation' to hear and decide\" cases within its jurisdiction \"is 'virtually unflagging.' \" Sprint Communications, Inc. v. Jacobs, 571 U.S. ----, ----, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). In recent decades, however, we have adverted to a \"prudential\" branch of standing, a doctrine not derived from Article III and \"not exhaustively defined\" but encompassing (we have said) at least three broad principles: \" 'the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.' \" Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)). Lexmark bases its \"prudential standing\" arguments chiefly on Associated General Contractors, but we did not describe our analysis in that case in those terms. Rather, we sought to \"ascertain,\" as a matter of statutory interpretation, the \"scope of the private remedy created by\" Congress in § 4 of the Clayton Act, and the" } ]

[ { "docid": "19117575", "title": "", "text": "in its unwarranted endeavor and thus respectfully dissent. . The majority, in Part III of its opinion, appears to misapprehend the essential predicate of my dissent. I do not contest our discretionary jurisdiction or seek to construct some doctrine of \"statutory avoidance.” Rather, I am convinced that we should, in these circumstances, simply apply and exercise judicial restraint. In the words of the D.C. Circuit, \"[i]f we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort. Article III courts should not make decisions unless they have to.” Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (citing Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (O'Connor, J.) (underscoring “the Art. Ill notion that federal courts may exercise power only in the last resort, and as a necessity” (internal quotation marks omitted))). . The unpublished Certification Order is found at J.A. 72-76. (Citations herein to \"J.A. -\" refer to the contents of the Joint Appendix filed by the parties in this appeal.) . The Complaint is found at J.A. 7-11. . Notably, at oral argument in this appeal, counsel for St. Catherine expressed confidence that, with the benefit of discovery, Kennedy’s claims would be defeated on the merits because St. Catherine “didn't harass her at all.” . I fear the majority has decided the question certified without the proper factual context. See Paschall v. Kan. City Star Co., 605 F.2d 403, 406 (8th Cir.1979) (\"Inherent in [the § 1292(b) ] requirements is the concept of ripeness.... The purpose of [§ ] 1292(b) is not to offer advisory opinions rendered on hypotheses which evaporate in the light of full factual development.” (internal quotation marks and alteration omitted)). The majority adopts a seemingly boundless interpretation of \"employment” as more than \"hiring and firing” even though it is unclear from the Complaint that Kennedy's employment was, in fact, affected apart from her termination. Interpreting the scope of the §" }, { "docid": "13293525", "title": "", "text": "We granted plaintiffs’ motion on September 26, 2000, ordered expedited briefing, and heard oral argument on October 5. II. We first address the FEC’s argument that plaintiffs have failed to exhaust their administrative remedies. Like the district court, we think the plaintiffs are not required to petition the FEC before bringing a facial challenge to the agency’s regulations. Because the FECA itself has no provisions governing judicial review of FEC regulations, the judicial review procedures of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq., apply to a facial challenge to the FECA’s implementing regulations. See Perot v. FEC, 97 F.3d 553, 560-61 (D.C.Cir.1996); Faucher v. FEC, 743 F.Supp. 64, 68 (1990), aff'd 928 F.2d 468 (1st Cir.1991). The FEC has steadfastly maintained that these debate regulations are valid and there is no point in requiring plaintiffs to go through exhaustion. See Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997); Brown v. Secretary of HHS, 46 F.3d 102, 113-14 (1st Cir.1995). III. We next consider whether the plaintiffs have standing. Standing doctrine involves “a blend of constitutional requirements and prudential considerations.” Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The constitutional component of standing stems directly from Article Ill’s limitation of federal judicial power to deciding justiciable cases or controversies. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To establish standing, it does not suffice for plaintiffs to show merely that they bring a justiciable issue before the court; they must show further that they have a sufficiently personal stake in the issue. This means that plaintiffs must show: (1) that they have suffered or are in danger of suffering some injury that is both concrete and particularized to them; (2) that this injury is fairly traceable to the allegedly illegal conduct of the defendant; and (3) that a favorable decision will likely redress the injury. See Valley Forge, 454 U.S. at 472, 102 S.Ct. 752; see also Vote Choice, Inc. v. DiStefano, 4" }, { "docid": "3867837", "title": "", "text": "the facts upon which its resolution may depend are not “fully crystallized,” nor do the appellants feel their effects in a concrete way. Id. Further supporting our decision that this case is prudentially unripe is the usually unspoken element of the rationale underlying the ripeness doctrine: If we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort. Allen, 468 U.S. at 752, 104 S.Ct. at 3325. Article III courts should not make decisions unless they have to. Relying on our opinion in Fair Employment Council, the parties seem to agree that prudential justiciability limitations do not bar consideration of a challenge to the Line Item Veto Act. In Fair Employment Council, we held that a federal statute which permitted “any ‘person claiming to be aggrieved’ by an unlawful employment practice to file suit,” 28 F.3d at 1278 (quoting 42 U.S.C. § 2000e-5(f)(1)), “open[ed] the courts to anyone who satisfie[d] the constitutional requirements” of Article III, id. In the Line Item Veto Act; Congress specified that any individual adversely affected by [the Act] may bring an action, in the United States District Court for the District of Columbia, for a declaratory judgment and injunctive relief on the ground that any provision of this part violates the Constitution.” 2 U.S.C. § 692(a)(1). Although when taken out of context, that provision seems to parallel the one we considered in Fair Employment Council, further examination reveals otherwise. 2 U.S.C. § 692(b) provides that any order entered pursuant to the judicial review provision of the Act is reviewable by direct appeal to the Supreme Court, not this court. We believe this provision constitutes a congres-sionally created barrier to our review of appellants’ claim. Just as Congress may override prudential barriers to judicial review, Fair Employment Council, 28 F.3d at 1278, so too, may it deny a court the authority to review a ease or class of cases otherwise within the Article III judicial power. As the Supreme Court has" }, { "docid": "7344908", "title": "", "text": "likely to be redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Even where these constitutional requisites for Article III standing are present, a party may still lack standing under “prudential” principles. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C.Cir.1997). Litigants seeking to assert the rights of third parties, proffering grievances unrelated to the “zone of interests” intended to be protected or regulated by a particular statutory or constitutional provision, or seeking adjudication of generalized grievances more appropriately addressed in the representative branches have been found to lack standing on prudential grounds. See Valley Forge, 454 U.S. at 474-75, 102 S.Ct. 752; Gladstone, 441 U.S. at 99-100, 99 S.Ct. 1601; Allen, 468 U.S. at 751, 104 S.Ct. 3315. The constitutional and prudential standing requirements assure that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752. Closely akin to the standing requirement, and indeed not always clearly separable from it, is the ripeness doctrine. See Louisiana Envtl. Action Network, 87 F.3d at 1384 (discussing the overlapping relationship of the “threshold doctrines”). Under that doctrine, an Article III court cannot entertain the claims of a litigant unless they are “constitutionally and prudentially ripe.” Id. at 1381. Article III does not allow a litigant to pursue a cause of action to recover for an .injury that is not “certainly impending.” National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury. As" }, { "docid": "19117574", "title": "", "text": "of the § 2000e-l(a) exemption, if St. Catherine can otherwise prevail on a motion to dismiss or a motion for summary judgment. Significantly, “[t]he potential for mootness takes on even greater weight ... when the question we may never have to address presents sophisticated and unprecedented questions.” Cf. Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1030-31 (6th Cir.1994) (concluding that interlocutory appeal was not properly certified under Federal Rule of Civil Procedure 54(b) given “significant possibility” that “novel and complex questions of state law presented on appeal” would subsequently “be rendered moot”). For, “[i]n keeping with notions of judicial restraint, federal courts should not reach out to resolve complex and controversial questions unnecessarily.” Id. (internal quotation marks omitted). The question presented in this § 1292(b) appeal is one of first impression in this Circuit with profound implications — one that probably need not be reached. As such, the majority issues what is effectively an advisory opinion construing a remedial statute to broadly preclude claims for relief. I am loath to join the majority in its unwarranted endeavor and thus respectfully dissent. . The majority, in Part III of its opinion, appears to misapprehend the essential predicate of my dissent. I do not contest our discretionary jurisdiction or seek to construct some doctrine of \"statutory avoidance.” Rather, I am convinced that we should, in these circumstances, simply apply and exercise judicial restraint. In the words of the D.C. Circuit, \"[i]f we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort. Article III courts should not make decisions unless they have to.” Nat’l Treasury Emp. Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (citing Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (O'Connor, J.) (underscoring “the Art. Ill notion that federal courts may exercise power only in the last resort, and as a necessity” (internal quotation marks omitted))). . The unpublished Certification Order is found at J.A." }, { "docid": "17874163", "title": "", "text": "party must allege a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). That injury must be “ ‘distinct and palpable’ ... and not ‘abstract’ or ‘eonjec-tural’ or ‘hypothetical....’” Id. (internal citations omitted). This injury requirement ensures that courts will decide only actual disputes and not abstract policy questions more properly decided by coordinate branches of government. See, e.g., Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984) (“[T]he law of Art. Ill standing is built on a single basic idea — the idea of separation of powers.”) (internal citations omitted). See also id., (“[Questions relevant to] the standing inquiry must be answered by reference to the Art. Ill notion that federal courts may exercise power only ‘in the last resort, and as a necessity’, ... and only when ... [i]t is ‘consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process ----’”) (internal citations omitted). Moreover, “standing also reflects a due regard for the autonomy of those likely to be affected by a judicial decision.” Diamond, 106 S.Ct. at 1703. Additionally, standing requires courts to base decisions on a concrete, actual set of facts, so that a court may appropriately limit the precedential value of its decisions. See Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982). It is doubtful that, if Brown and Culberson were the only parties before the court seeking termination of (or other relief respecting) the Final Judgment, they would have sufficient standing so that the district court would be presented with an Article III case or controversy. See Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (discussing legislative standing). We assume, arguendo only, that appellants would not have such standing. However, we hold that Article III does not require interve-nors to" }, { "docid": "5632710", "title": "", "text": "(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 the theft of the laptop computer, see id. at 14-17. The Court agrees with ING that Plaintiffs lack standing because they have failed to plead an injury in fact. The Court therefore does not reach ING’s other arguments in favor of dismissal, but instead shall remand this case to the Superior Court for the District of Columbia, pursuant to 28 U.S.C. § 1447(c). A. Plaintiffs Lack Standing Because They Fail to Plead an Injury in Fact As an Article III court, this Court’s judicial power is limited to adjudicating actual “cases” and “controversies.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “In an attempt to give meaning to Article Ill’s case-or-controversy requirement, the courts have developed a series of principles termed ‘justiciability doctrines,’ among which are standing[,] ripeness, mootness, and the political question doctrine.” Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996) (citing Allen, 468 U.S. at 750, 104 S.Ct. 3315, 82 L.Ed.2d 556). These doctrines incorporate both the prudential elements, which “Congress is free" }, { "docid": "4670100", "title": "", "text": "closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additionally, unlike with a motion to dismiss under Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, L.L.C. v. E.E.O.C., 409 F.3d 359, 366 (D.C.Cir.2005) (“given the present posture of this case — a dismissal under Rule 12(b)(1) on ripeness grounds — the court may consider materials outside the pleadings”); Herbert v. Nat’l Academy of Sciences, 974 F.2d 192, 197 (D.C.Cir.1992). III. Analysis The primary argument set forth in Defendants’ Motions is that Plaintiffs lack standing because they have failed to show that their alleged injuries are (1) fairly traceable to Defendants’ conduct and (2) redressable by a favorable decision of this Court. The Court will consider these two elements of standing in turn. Article III of the Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const. art. III, § 2; see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (discussing case-or-controversy requirement). “This limitation is no mere formality: it ‘defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.’ ” Dominguez v. UAL Corp., 666 F.3d 1359, 1361 (D.C.Cir.2012) (quoting Allen, 468 U.S. at 750, 104 S.Ct. 3315). Because “standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), finding that a plaintiff has standing is a necessary “predicate to any exercise of [the Court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996). The doctrine of standing “requires federal courts to satisfy themselves that ‘the plaintiff has alleged such a personal stake in" }, { "docid": "7344909", "title": "", "text": "104 S.Ct. 3315. The constitutional and prudential standing requirements assure that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752. Closely akin to the standing requirement, and indeed not always clearly separable from it, is the ripeness doctrine. See Louisiana Envtl. Action Network, 87 F.3d at 1384 (discussing the overlapping relationship of the “threshold doctrines”). Under that doctrine, an Article III court cannot entertain the claims of a litigant unless they are “constitutionally and prudentially ripe.” Id. at 1381. Article III does not allow a litigant to pursue a cause of action to recover for an .injury that is not “certainly impending.” National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996). Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury. As the Supreme Court stated in Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), “[a]liegations of possible future injury do not satisfy the requirements of Art. III.” Like the standing doctrine, the ripeness requirement dictates that courts go beyond constitutional minima and take into account prudential concerns which in some cases may mandate dismissal even if there is not a constitutional bar to the exercise of our jurisdiction. In deciding whether an agency’s decision is ripe -for review, we must examine the “fitness of the issues for judicial decision” and the “hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Supreme Court has elaborated upon these requirements, concluding that courts must consider “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n, Inc. v. Sierra Club," }, { "docid": "15376297", "title": "", "text": "at 1441. For those reasons, we lack subject-matter jurisdiction over the tire industry petitioners’ petition for review of NHTSA’s refusal to initiate rulemaking concerning Standard 110. Ill The tire industry petitioners and Public Citizen have petitioned for review of Standard 138. The essence of the challenge on the merits is that NHTSA’s new safety regulation will improve tire safety, but not as much as the TREAD Act requires. Claims that a safety regulation is good— but not good enough — can pose difficult issues of standing. This case is no exception. A The Constitution limits the federal courts to deciding cases or controversies. See U.S. Const, art. III, § 2, cl. 1; DaimlerChrysler Corp. v. Cuno, — U.S. —, 126 S.Ct. 1854, 1860-61, 164 L.Ed.2d 589 (2006). To present a justiciable case or controversy, litigants must demonstrate standing, among other requirements. As the Supreme Court has stated, “the law of Article] III standing is built on a single basic idea — the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The standing doctrine helps ensure that the Judicial Branch does not perform functions assigned to the Legislative or Executive Branch and “that the judiciary is the proper branch of government to hear the dispute.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc). To demonstrate standing under Article III, a party must show injury in fact that was caused by the conduct of the defendants and that can be redressed by judicial relief. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561, 112 S.Ct. 2130. Under our precedents, “a petitioner whose standing is not self-evident should establish its standing by the submission of its arguments and any affidavits or other evidence appurtenant thereto at the first appropriate point in the review proceeding.” Sierra Club v. EPA 292 F.3d 895, 900 (D.C.Cir.2002) (punctuation altered). In a direct-review agency case in this Court, that “first" }, { "docid": "5735615", "title": "", "text": "outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens, 402 F.3d at 1253; see also Venetian Casino Resort, 409 F.3d at 366; Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992). B. Standing Analysis Article III of the Constitution limits the power of the federal judiciary to the resolution of “Cases” and “Controversies.” U.S. Const, art. Ill, § 2; see also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (discussing the case-or-controversy requirement). “This limitation is no mere formality: it ‘defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.’ ” Dominguez, 666 F.3d at 1361 (quoting Allen, 468 U.S. at 7-50, 104 S.Ct. 3315). Because “standing is an essential and unchanging part of the case-or-controversy requirement of Article III,” Lujan, 504 U.S. at 560, 112 S.Ct. 2130, the finding that a plaintiff has standing is a necessary “predicate to any exercise of [a court’s] jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996). “Every plaintiff in federal court,” consequently, “bears the burden of establishing the three elements that make up the ‘irreducible constitutional minimum’ of Article III standing: injury-in-fact, causation, and redressability.” Dominguez, 666 F.3d at 1362 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Taken together, these elements require a plaintiff to demonstrate the existence of a “personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S. at 751, 104 S.Ct. 3315 (citation omitted). In addition, when multiple plaintiffs bring the same claims, a court need only ensure that one of those plaintiffs has standing to pursue them. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.Cir.1996) (“[I]f constitutional and prudential standing can be shown for at least one plaintiff, we need not consider the standing of the other plaintiffs to raise that claim.” (citations omitted)). Finally, standing is assessed by considering the facts at the time the complaint was filed. See" }, { "docid": "18242155", "title": "", "text": "of jurisdiction under Fed.R.Civ.P. 12(b)(1) on the ground the CWA precludes pre-enforcement judicial review of a TNW Determination. See Nat’l Ass’n of Home Builders v. U.S. EPA 731 F.Supp.2d 50 (D.D.C.2010). In light of its disposition, the court declined to reach the Agencies’ alternative grounds for dismissal, including NAHB’s lack of Article III standing. NAHB filed a timely notice of appeal. II. “Because Article III limits the constitutional role of the federal judiciary to resolving cases and controversies, a showing of standing ‘is an essential and unchanging’ predicate to any exercise of our jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C.Cir.1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted)). “The ‘irreducible constitutional minimum of standing contains three elements’: (1) injury-in-fact, (2) causation, and (3) redressability.” Ass’n of Flight Attendants-CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 464 (D.C.Cir.2009) (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (quotation marks omitted)). “Thus, to establish standing, a litigant must demonstrate a ‘personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (alteration in Allen)). We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing — either in its own right or on behalf of its members. A. Organizational Standing To establish organizational standing, NAHB must “allege[ ] such a ‘personal stake’ in the outcome of the controversy as to warrant the invocation of federal-court jurisdiction”; that is, it must demonstrate that it has “ ‘suffered injury in fact,’ including ‘[s]uch concrete and demonstrable injury to the organization’s activities — with [a] consequent drain on the organization’s resources — constituting] ... more than simply a setback to the organization’s abstract social interests.’ ” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d" }, { "docid": "10696953", "title": "", "text": "that are furthered by the avoidance of unnecessary adjudication”); cf. Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (describing the “usually unspoken element of the rationale underlying the ripeness doctrine: If we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort.”). Dismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733-35, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (further administrative or judicial proceedings are not sufficient hardship to justify review in a case that would otherwise be unripe); AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C.Cir.2003) (“If the only hardship a claimant will endure as a result of delaying consideration of the disputed issue is the burden of having to engage in another suit, this will not suffice to overcome an agency’s challenge to ripeness.”) (internal quotation marks and alterations omitted); cf. Friends of Keeseville, 859 F.2d at 237 (petitioner’s present injury is less significant when judicial relief “is deferred but not denied”). As a matter of prudence and judicial restraint, I therefore would dismiss this case as unripe. I respectfully dissent. . The majority opinion quotes the FCC's NEPA regulations, which have been in place for 20 years and were coordinated with the Council on Environmental Quality; these regulations require the Commission to prepare an EIS when a proposed action \"will have” a significant environmental impact. Maj. Op. at 1033 (quoting 47 C.F.R. § 1.1314(a)); see also 47 C.F.R. § 1.1308(c). I do not interpret the majority opinion to suggest (much less hold) that the “will have” standard set forth in the FCC regulations is invalid. See generally Nat'l Audubon Soc.'y v. Hester, 801 F.2d 405," }, { "docid": "22820329", "title": "", "text": "F.2d at 878. As applied to this case, the most relevant of these prudential considerations is that even when the plaintiff has alleged re-dressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating \"abstract questions of wide public significance\" which amount to \"generalized grievances,\" pervasively shared and most appropriately addressed in the representative branches. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982) (citation omitted); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). Here, plaintiffs' allegations of threatened prosecution and increased prices affect not only the named plaintiffs, but also anyone desiring to possess semiautomatic assault weapons. Plaintiffs' alleged harms amount to no more than a \"`generalized grievance' shared in substantially equal measure by a large class of citizens,\" and thus do not warrant the exercise of jurisdiction. Western Mining Council, 643 F.2d at 632. V. RIPENESS The district court also found that plaintiffs’ claims were not ripe for review. Ripeness is “peculiarly a question of timing.” Buckley v. Valeo, 424 U.S. 1, 114, 96 S.Ct. 612, 680, 46 L.Ed.2d 659 (1976) (citation omitted). To determine whether plaintiffs’ claims are ripe for review, we evaluate (1) whether the issues are fit for judicial decision, and (2) whether the parties will suffer hardship if we decline to consider the issues. Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Dev. Comm’n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720-21, 75 L.Ed.2d 752 (1983) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967)). A. Fitness of the Issues for Judicial Decision With regard to the first inquiry, pure legal questions that require little factual development are more likely to be ripe. Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1434-35 (9th Cir.1996) (whether Congress delegated too much authority to the President under a certain Act, whether a particular regulation could withstand a facial challenge under the First and Fifth" }, { "docid": "3867836", "title": "", "text": "S.Ct. at 1515. In testing whether the facts of a particular case meet that standard of ripeness, we have often applied a two-part analysis, evaluating' “[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of' withholding court consideration.” Id. at 149, 87 S.Ct. at 1515; accord NRDC v. EPA, 859 F.2d 156, 166 (D.C.Cir.1988). Taking the questions in reverse order, the only alleged hardship to the parties of withholding immediate judicial review is that the appellants, allegedly, will divide their resources differently between their lobbying efforts toward the Congress — still virtually as involved in the budget' making process as ever — on the one hand, and the President — who always had a veto, but now has a stronger one — on the other. Whatever is on the other side of the scale need not be very heavy to outweigh this light hardship. As for the current fitness for judicial review, while the broad legal theory advanced by appellants may be as complete as it ever will, the facts upon which its resolution may depend are not “fully crystallized,” nor do the appellants feel their effects in a concrete way. Id. Further supporting our decision that this case is prudentially unripe is the usually unspoken element of the rationale underlying the ripeness doctrine: If we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort. Allen, 468 U.S. at 752, 104 S.Ct. at 3325. Article III courts should not make decisions unless they have to. Relying on our opinion in Fair Employment Council, the parties seem to agree that prudential justiciability limitations do not bar consideration of a challenge to the Line Item Veto Act. In Fair Employment Council, we held that a federal statute which permitted “any ‘person claiming to be aggrieved’ by an unlawful employment practice to file suit,” 28 F.3d at 1278 (quoting 42 U.S.C. § 2000e-5(f)(1)), “open[ed] the courts to anyone who satisfie[d]" }, { "docid": "10696952", "title": "", "text": "1434 (D.C.Cir.1993) (“The danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review.”) (citation omitted). Even if the Gulf Coast order in isolation is technically final, our ripeness precedents suggest that, at least in these unusual circumstances, we should allow the ongoing administrative process to run its course before we intervene. See Devia v. NRC, 492 F.3d 421, 424 (D.C.Cir.2007) (“Article III courts should not make decisions unless they have to.”) (internal quotation marks omitted); Toca Producers v. FERC, 411 F.3d 262, 266 (D.C.Cir.2005) (although the challenged orders appeared to be “final agency action within the meaning of the Administrative Procedure Act,” orders were not “sufficiently final” for judicial review because agency’s action in separate docket could “resolv[e] the issues raised” in the appeal) (internal quotation marks omitted); Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 236 (D.C.Cir.1988) (court “may properly give weight to the interests in judicial economy that are furthered by the avoidance of unnecessary adjudication”); cf. Nat’l Treasury Employees Union v. United States, 101 F.3d 1423, 1431 (D.C.Cir.1996) (describing the “usually unspoken element of the rationale underlying the ripeness doctrine: If we do not decide it now, we may never need to. Not only does this rationale protect the expenditure of judicial resources, but it comports with our theoretical role as the governmental branch of last resort.”). Dismissing this case on ripeness grounds would serve the interests of judicial economy, permit the Executive Branch to carefully re-examine and resolve environmental issues related to communications towers and birds on a nationwide basis, and impose minimal hardship on the petitioners who are themselves participating in the nationwide rulemaking proceeding. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733-35, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998) (further administrative or judicial proceedings are not sufficient hardship to justify review in a case that would otherwise be unripe); AT&T Corp. v. FCC, 349 F.3d 692, 700 (D.C.Cir.2003) (“If the only hardship a claimant" }, { "docid": "5632711", "title": "", "text": "the theft of the laptop computer, see id. at 14-17. The Court agrees with ING that Plaintiffs lack standing because they have failed to plead an injury in fact. The Court therefore does not reach ING’s other arguments in favor of dismissal, but instead shall remand this case to the Superior Court for the District of Columbia, pursuant to 28 U.S.C. § 1447(c). A. Plaintiffs Lack Standing Because They Fail to Plead an Injury in Fact As an Article III court, this Court’s judicial power is limited to adjudicating actual “cases” and “controversies.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “In an attempt to give meaning to Article Ill’s case-or-controversy requirement, the courts have developed a series of principles termed ‘justiciability doctrines,’ among which are standing[,] ripeness, mootness, and the political question doctrine.” Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C.Cir.1996) (citing Allen, 468 U.S. at 750, 104 S.Ct. 3315, 82 L.Ed.2d 556). These doctrines incorporate both the prudential elements, which “Congress is free to override,” id. (quoting Fair Employment Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C.Cir.1994)) (internal quotations omitted), and “core eomponent[s]” which are “essential and unchanging part[s] of the case-or-controversy requirement of Article III,” id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations omitted)). Standing is an “irreducible constitutional minimum.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130, 119 L.Ed.2d 351. In order to satisfy the constitutional standing requirements, a plaintiff must establish that he or she has (1) suffered an injury in fact, “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,” (2) which is fairly traceable to the challenged act, and (3) is likely to be redressed by a favorable decision. Nat'l Treasury Employees Union, 101 F.3d at 1427 (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130, 119 L.Ed.2d 351). To ground Article III standing, “the injury alleged cannot be conjectural or hypothetical," }, { "docid": "4439630", "title": "", "text": "the judgment that the Agency has made.” [ ] Yet, the intensity of review under this standard is certainly not immutable. In fact, in this case our level of scrutiny is heightened because so many of the Commission’s actions involve some departure from prior policies and precedents. Of course, this court fully appreciates the need, and indeed the responsibility, of the Commission to reevaluate its regulatory standards over time. Periodic examination of the continued vitality of regulatory approaches should not be discouraged; Congress in fact vested this Commission with broad discretion precisely to facilitate such modifications of administrative policies in light of developments in the evolving broadcast industry. While we do not then challenge the Commission’s theoretical right to modify, or even overrule, long-standing precedents, such abrupt shifts in policy do constitute “danger signals” that the Commission may be acting inconsistently with its statutory mandate. We will require therefore that the Commission provide a “reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored * * Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29 L.Ed.2d 701 (1971). More over, we will scrutinize closely the analytical and factual bases for the choices made, requiring that the Commission provide sufficient analysis and explanation of the grounds for its decision. As we recently explained: [I]t is vital that an agency justify a departure from its prior determinations. * * [T]he requirement of reasons imposes a measure of discipline on the agency, discouraging arbitrary or capricious action by demanding a rational and considered discussion of the need for a new agency standard. The process of providing a rationale that can withstand public and judicial scrutiny compels the agency to take rule changes seriously. The agency will be less likely to make changes that are not supported by the relevant law and facts. * * *[ ] Finally, we will look carefully at the Commission’s reasoning to ensure that all relevant factors and available alternatives were given adequate consideration in the course of the rulemaking proceedings. Only then" }, { "docid": "22567078", "title": "", "text": "FQPA created doubt in the minds of consumers as to the safety of various pesticides. (Opposition at 36.) Congress, through the FQPA, dictated the three-tiered reassessment plan and placed the EPA’s decisions prioritizing the reassessment of pesticide tolerance and exemptions beyond judicial review. See 21 U.S.C. § 346a(q). The FQPA also mandated the development of an endocrine disruptor screening program. Thus, any product deselection is attributable primarily to acts of Congress rather than to EPA decision-making. Furthermore, public statements by the Consumer Product Safety Commission or other advocacy groups decrying the safety of plaintiffs’ pesticide products cannot be attributed to the EPA. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding no standing where causal factors intervened). In cases involving the conduct of third parties, standing will be precluded when “multiple, tenuous links” connect the challenged conduct to the asserted injury. Center for Auto Safety v. NHTSA, 793 F.2d 1322, 1335 (D.C.Cir.1986). The decision to devote resources to identify and counteract misinformation about pesticide products is also not fairly traceable to EPA’s reassessment schedule or endocrine disruptor screening program. The D.C. Circuit rejected a similar argument in National Treaswry Employees Union v. United States, 101 F.3d 1423 (D.C.Cir.1996) (“NTEU”), holding that plaintiffs lacked standing to challenge the Line Item Veto Act, despite claims that the Act forced them to “expend additional time and money ... to help ensure that the President does not thwart our legislative advocacy,” and “reduee[d] NTEU’s ability to advocate its members’ views.” Id. at 1426. Absent proof that the defendant’s actions and the organization’s mission were in “direct conflict,” the court found that it was “entirely speculative” whether the defendant’s conduct had actually impeded the organization’s activities. Id. at 1430. “NTEU would have us accept as true not only the fact that it has expended additional funds in an attempt to lobby the President more effectively, but also the speculative conclusion that such expenditures are a necessary link in achieving the organization’s ultimate purpose. This we decline to do.” Id. An organization’s budgetary choices do not provide adequate grounds for standing." }, { "docid": "11723196", "title": "", "text": "animals used for food, and livestock used to improve nutrition, breeding or production efficiency. Id. After the 1970 amendments and an extensive rulemaking, the Department issued the regulation that is now contested. The Secretary defined “animal” essentially as it was defined in the statute except that the regulation expressly excluded “birds, aquatic animals, rats and mice.” 36 Fed.Reg. 24,917, 24,919 (1971). In the late 1980s the Secretary re-examined the regulatory definition but adhered to that exclusion. 54 Fed.Reg. 10,822, 10,823-24 (1989). In 1989 two of the plaintiff-appellees, the Animal Legal Defense Fund and the Humane Society of the United States, requested that the Secretary again conduct a rulemak-ing to re-examine the exclusion. The Department refused, relying, it said, on the Act, its legislative history, and considerations of “the manpower, funds, and other resources available to administer effectively our animal welfare program.” Letter from James W. Glosser (June 8, 1990), Joint Appendix (“J.A.”) at 46. These associations, joined by two individual members, sued to enjoin the Secretary from excluding birds, mice and rats and to set aside the denial of their rulemaking petition. II. To secure constitutional standing the plaintiffs must show injury in fact that is fairly traceable to the defendant’s action and redressable by the relief requested. See Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 759-60, 70 L.Ed.2d 700 (1982). To secure judicial review under the APA, they must show that the injuries they assert fall within the “zone of interests” of the relevant statute. See Clarke v. Securities Industry Ass’n, 479 U.S. 888, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987). On appeal, the Secretary has elected not. to challenge the District Court’s rulings on justiciability. See Appellant’s Br. at 9 n. 5, n. 6. That waiver cannot satisfy the constitutional standing requirements, for Article III limits federal jurisdiction and “every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the" } ]

[ { "docid": "949940", "title": "", "text": "imposed upon the co-defendant. Dawson claimed that he was given a harsher sentence because he had not volunteered any information about his source. He explained that he had not assisted the government because of strongly held personal principles and because of fear and concern for the safety of his wife, family, and himself. He further added that federal authorities knew the identity of his source as well as his source’s location as the government had the location under surveillance on the day of the offense alleged in the indictment. Dawson also requested that any sentence imposed be served pursuant to 18 U.S.C. § 4205(b)(2) so that his eligibility for parole would be determined solely by the Parole Commission’s guidelines. Dawson sought an evidentiary hearing on his motion, which the district court in its discretion denied. On April 30, 1980, the court denied Dawson’s Rule 35 motion in a short order, stating that the sentence was sound when imposed, that it saw no need for a change of sentence, and that the “route to minimum custody time is through the Parole Commission.” At the same time the court declined to allow the sentence to be served pursuant to section 4205(b)(2), even though section 4205(a) prevents the Parole Commission from considering a parole request until the completion of one-third of the sentence in prison. II A Rule 35 motion for reduction of sentence is addressed to the sound discretion of the trial court. United States v. Brown, 428 F.2d 1191 (7th Cir.), cert. denied, 400 U.S. 941, 91 S.Ct. 238, 27 L.Ed.2d 245 (1970). The scope of our appellate review of a Rule 35 denial is narrow; the decision of the district court will be set aside only if the trial court abused its discretion. Id.; United States v. Donner, 528 F.2d 276 (7th Cir. 1976), overruled on other grounds, Lawary v. United States, 599 F.2d 218 (7th Cir. 1979). We have no power to change or reduce sentences imposed within the requisite legislative limits on the ground that the sentence is too severe, Townsend v. Burke, 334 U.S. 736, 68 S.Ct." } ]

[ { "docid": "347721", "title": "", "text": "liberty. . We may have already so declared in Virgin Islands v. Gereau, 603 F.2d 438, 442 n. 2 (3d Cir.1979). We said: \"Rule 35 speaks in terms of the court’s action being taken within 120 days, but it is well established that, once a timely motion is filed, the district court may retain jurisdiction for a reasonable amount of time to decide the motion. See United States v. Mendoza, 581 F.2d 89 (5th Cir.1978) (per curiam; in banc); United States v. Stollings, 516 F.2d 1287 (4th Cir.1975).” If we view the statements in Gereau as a square holding, we are of course bound to adhere to it by virtue of our Internal Operating Procedure, Chapter VIIC. Fortunately, however, we need not decide the precedential authority of the assertion in Gereau, which, though issued after Addonizio, did not mention the case, for we believe that the result reached by Gereau is correct. . It is clear that the Court in Addonizio was not addressing the question whether a district court lost jurisdiction over a rule 35(b) motion filed within the 120-day period because the court had not ruled on the motion when the clock ran out. . The Eighth Circuit has reached the same result in United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). The Ninth Circuit, in United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) has declined — albeit without discussing the Addonizio dictum — to retreat from its holding that the district court may retain jurisdiction beyond the rule 35(b) period. A contrary viewpoint, however, has been expressed by the Seventh Circuit in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984), which concluded that the passage from Addonizio is an integral part of the approach in that case. Ultimately, however, the Kajevic court decided its case on the basis that, under the circumstances, the district court's delay was unreasonable. Technically, therefore, there is not yet a circuit split on the issue presented here. . Rule 35(b), it may be observed, is a" }, { "docid": "773710", "title": "", "text": "MEMORANDUM OPINION AND ORDER SHADUR, District Judge. On Friday May 25, 1984 counsel for James Dunn (“Dunn”) filed with the Clerk of this Court a motion under Fed.R.Crim.P. (“Rule”) 35 for reduction of the sentence imposed on Dunn by this Court January 30, 1984. In the regular course that motion found its way to this Court’s chambers at the close of the next working day, May 29 (on May '28 the entire District Court had been closed because of the official Memorial Day holiday). That was literally the end of the 120th day after the sentencing date. At the outset this Court must decry the timing of the motion. Rule 35 literally allows reduction of a sentence only “within 120 days after the sentence is im-posed_” Though there has been a fairly widespread judicial tendency to bend that literal language where a Rule 35 motion has been filed within 120 days and the District Court acts promptly thereafter (see, e.g., what our Court of Appeals has described as “the leading case” for that viewpoint, United States v. Stollings, 516 F.2d 1287, 1289-90 (4th Cir.1975)), in all candor that is not how the Rule reads—and the cases that speak that way have really engaged in judicial legislation. Last year our own Court of Appeals issued the strongest kind of suggestion that the 120-day limit was jurisdictional (though it did not have to decide the issue definitively under the facts presented). United States v. Kajevic, 711 F.2d 767 (7th Cir.1983); and see the unanimous expression of the Supreme Court, albeit in dictum, in United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979): The [120-day] time period, however, is jurisdictional and may not be extended. In the face of Kajevic (and the Addonizio dictum) there is simply no excuse for counsel’s failure to file a motion early enough to permit the District Court’s reasoned consideration and action before the 120-day period runs out. That was not done here, and there is thus a serious question whether this Court has jurisdiction to act at all. But this" }, { "docid": "18321861", "title": "", "text": "A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction, and the defendant would probably even have time to file a motion for reconsideration within the 120-day time period (emphasis added). Even clearer is the court’s recent opinion on United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), in which the jurisdictional question was squarely presented. After reviewing the body of authority on the power of the courts to reduce sentences following the expiration of the 120-day period, the court concluded: ... [T]he background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. ... [I]f 120 days is not enough [time in which to hold a hearing, if necessary, and to act on the motion], or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have authority to do so; the courts of appeals do not. The argument that a court should rewrite a statute because the legislature lacks the time •to do so is of dubious propriety at best; it is particularly questionable when one is dealing with a rule promulgated by the Supreme Court subject to congressional veto. Such a rule can be amended more easily than a statute can. The placing of some time limitation on the Court and not just on the movant cannot be dismissed as inadvertent. United States v. Kajevic, 711 F.2d 767, 770-771 (7th Cir.1983). Nonetheless, the court decided the appeal on a narrower ground, and declined to establish the literal interpretation of rule 35(b) as the law of the Circuit: Although as should be evident by now we have serious doubts whether a district judge can ever reduce a sentence under Rule 35(b)" }, { "docid": "18321862", "title": "", "text": "should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have authority to do so; the courts of appeals do not. The argument that a court should rewrite a statute because the legislature lacks the time •to do so is of dubious propriety at best; it is particularly questionable when one is dealing with a rule promulgated by the Supreme Court subject to congressional veto. Such a rule can be amended more easily than a statute can. The placing of some time limitation on the Court and not just on the movant cannot be dismissed as inadvertent. United States v. Kajevic, 711 F.2d 767, 770-771 (7th Cir.1983). Nonetheless, the court decided the appeal on a narrower ground, and declined to establish the literal interpretation of rule 35(b) as the law of the Circuit: Although as should be evident by now we have serious doubts whether a district judge can ever reduce a sentence under Rule 35(b) after the 120-day time limit has passed, we are reluctant to hold that he cannot. Such a holding would both create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit. Id. at 771. This Court is not so reluctant to apply the Kajevic dictum in those instances where motions for reduction of sentence are filed so near the deadline as to preclude both a reasonable opportunity for the Government to respond and meaningful consideration by the Court itself. Accordingly, the Court hereby adopts as its “common practice” the denial on jurisdictional grounds of all future rule 35(b) motions that are: 1) filed in the twilight of the 120-day period; 2) not resolved by the Court prior to the expiration of that period; and 3) not supported by or premised on evidence or a change of circumstances discovered within the last days of the time limitation. Because the Court announces this rule for prospective application only, it reaches the substantive merits of the present request for" }, { "docid": "18557450", "title": "", "text": "direct his plea to the Parole Commission rather than the court. Kimberlin also filed a motion to disqualify Judge Steckler, who had sentenced him. On August 23 Judge Steckler stepped aside. By now 127 days had passed since the denial of certiorari, or seven days more than the 120 provided by Rule 35(b). No one drew the question of timeliness to the attention of Judge Dillin, to whom the case had been reassigned. On November 8 Judge Dillin denied the motion, concluding that Kimberlin had not “presented any facts which warrant a reduction or modification” of the sentence. The parties have debated the merits of this decision with great vigor on appeal. Kimberlin also argues that Judge Dillin was biased against him, so that the case should be remanded for a fresh ruling by still a third judge. We conclude, however, that we cannot reach the merits. Gaertner v. United States, 763 F.2d 787 (7th Cir.1985), holds that the version of Rule 35(b) in effect until August 1, 1985, gives judges only 120 days in which to act, and that this is a jurisdictional limit that may not be extended. The Rule said that the court “may reduce sentence within 120 days” after the denial of certiorari, and Gaertner holds that the Rule meant what it said. See also United States v. Addonizio, 442 U.S. 178, 189, 99 S.Ct. 2235, 2242, 60 L.Ed.2d 805 (1979) (dictum); United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984). The district court’s power to act on Kimberlin’s motion under Rule 35(b) therefore ended on August 16, 1983. Gaertner was decided on June 3, 1985, and the question naturally arises whether that decision is retroactive. The answer is yes. Gaertner held that the time limit of Rule 35(b) limits the subject matter jurisdiction of the district court. Because the power of the court, rather than the wisdom of its exercise, was at stake, it does not matter when Gaertner came down. “A court lacks discretion to consider the merits of a case over" }, { "docid": "8440141", "title": "", "text": "reduce a sentence will not be misused as a substitute for the consideration of parole by the Parole Board.” 516 F.2d at 1289. Likewise, in United States v. Mendoza, 565 F.2d 1285 (5th Cir.1978), the Fifth Circuit noted that limiting the retention of Rule 35 jurisdiction to a reasonable time “should prevent the possibility, however remote, of a district court usurping the function of the Parole Board. .. . ” Id. at 1291. Most recently, in United States v. Kajevic, 711 F.2d at 767, the Seventh Circuit held that “[wjhen a district judge delays action on a Rule 35(b) motion till long after the expiration of the 120 days, for the purpose or with the likely effect of assuming the function of the parole authorities, his delay is unreasonable.” Id. 772. See also United States v. Krohn, 700 F.2d at 1033 (holding district court’s ten-month delay in reducing defendant’s sentence was reasonable because court did not deliberately or effectively intervene in matters committed to authority or Parole Commission). In this case, the trial judge purposely delayed consideration of the motion before him until seven months after the deadline in order to review the Parole Commission’s decision. As the trial judge conceded in the order reducing Schafer’s sentence, the ultimate reason for the delay was that he disa greed with the Parole Commission’s decision. Under these circumstances, we can only conclude that the delay was unreasonable and the court was without jurisdiction. Lastly, the Government argues that the appropriate remedy in this case is to order reinstatement of the district court’s original sentence. We agree. The trial judge was without jurisdiction to reduce Schafer’s sentence. We, therefore, hold that reinstatement of the original sentence is an appropriate remedy. III. For the foregoing reasons, the judgment of the district court is vacated, and this case is remanded for reinstatement of the district court’s original sentence. REVERSED AND REMANDED WITH INSTRUCTIONS. . Schafer suggests that the Parole Commission’s brief reference to a dismissed obstruction of justice charge was the reason the Commission extended his parole date. The Commission only mentioned this charge, however," }, { "docid": "20340771", "title": "", "text": "create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit.” 711 F.2d at 771. One circuit which has determined that the jurisdiction of the sentencing judge does extend beyond the 120-day limit is the Fourth. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), the court decided that the sentencing judge maintains jurisdiction beyond the 120-day limit as long as the defendant’s motion is filed before the deadline. Other circuits have interpreted Rule 35(b) similarly, as imposing a limitation on the period for filing a motion but not as a limitation on the court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the courts which have recognized the jurisdictional authority of the sentencing judge beyond the 120-day period specified in Rule 35(b) have ruled contrary to the dictum in United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). In Addonizio, the Supreme Court stated that the 120-day time period in Rule 35(b) “is jurisdictional and may not be extended.” Id. at 189, 99 S.Ct. at 2243. Clearly, the Court interpreted Rule 35(b) as imposing a limitation on the authority of judges to act, not as a deadline by which petitioners must file their motions. Relying on the Court’s reading of Rule 35(b), the Seventh Circuit in Inendino and Kajevic reached the same conclusion. See Inen dino, supra, at 109 and Kajevic, supra, at 770. Such clear indications by the Supreme Court and Seventh Circuit of the limitations imposed on the sentencing judge by Rule 35(b) will not be ignored by this Court. In Cotton, this Court stated that the dictum in Kajevic would be applied “where motions for reduction of sentence are filed so near the deadline as to preclude both a reasonable opportunity for the Government to respond and meaningful consideration by the Court itself.” United States v. Cotton, supra, at" }, { "docid": "8440139", "title": "", "text": "Commission affirmed its presumptive parole decision of eighteen months on August 3, 1982. The district court then entered an order reducing Schafer’s sentence to one year. As a consequence of the court’s order, Schafer was relieved from serving the six months remaining until his parole date. The court found that its delay in ruling .on Schafer’s motion was “reasonable” because a sentence reduction was needed to correct an “obvious unjust practice of the Parole Commission.” This appeal by the Government followed. II. On appeal, the Government contends that the district court lost jurisdiction over the motion at issue when it delayed consideration of the motion until after the 120-day deadline in order to review the Parole Commission’s decision. Additionally, the Government argues that the appropriate remedy in this case is to order reinstatement of the district court’s original sentence. We agree with both of the Government’s contentions. Rule 35(b) states, in pertinent part, that “[t]he court may reduce a sentence within 120 days after the sentence is imposed,...” On its face the rule limits the time within which the trial court has power to act, however, this circuit and other circuits that have considered the issue have not applied the rule in a mechanical fashion. United States v. Kajevic, 711 F.2d 767 (7th Cir. 1983); United States v. Krohn, 700 F.2d 1033 (5th Cir.1983); United States v. Stoll-ings, 516 F.2d 1287 (4th Cir.1975). In Stollings, the Fourth Circuit recognized that it is sometimes impractical for a judge to act within the 120-day period. In that case, upon missing the Rule 35(b) deadline by three days, the trial judge declined to rule on the defendant’s motion because he believed he had lost jurisdiction. On appeal, this Court held that where delay is based upon reasonable grounds, a district judge may properly retain jurisdiction over a timely filed motion for reduction of sentence. In Stollings, however, Judge Haynsworth specifically warned that the time limitation of Rule 35(b) has “as its dual purpose the protection of the district court from continuing and successive importunities and to assure that the district court’s power to" }, { "docid": "18321860", "title": "", "text": "United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (quoted above), has apparently rejected the holding of United States v. Stollings, 516 F.2d 1287 (4th Cir.1975), and its projeny and has, instead, suggested a near-literal interpretation of rule 35(b). In United States v. Inendino, 655 F.2d 108, 109-110 (7th Cir.1981), the court intimiated that the 120-day limitation is indeed a limitation on the sentencing judge’s power to act and not just on the defendant’s time for filing his motion: Rule 35 imposes ... a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional, ... and it may not be extended at the discretion of the district court. One of the purposes of Rule 35 is to permit defendants to present new evidence not available at the time of sentencing, and a defendant may do so in motion to reconsider denial of a Rule 35 motion, but that evidence must be presented within the 120-day limit established in the rule. A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction, and the defendant would probably even have time to file a motion for reconsideration within the 120-day time period (emphasis added). Even clearer is the court’s recent opinion on United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), in which the jurisdictional question was squarely presented. After reviewing the body of authority on the power of the courts to reduce sentences following the expiration of the 120-day period, the court concluded: ... [T]he background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. ... [I]f 120 days is not enough [time in which to hold a hearing, if necessary, and to act on the motion], or if there" }, { "docid": "347722", "title": "", "text": "35(b) motion filed within the 120-day period because the court had not ruled on the motion when the clock ran out. . The Eighth Circuit has reached the same result in United States v. DeMier, 671 F.2d 1200, 1205-06 (8th Cir.1982). The Ninth Circuit, in United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981) has declined — albeit without discussing the Addonizio dictum — to retreat from its holding that the district court may retain jurisdiction beyond the rule 35(b) period. A contrary viewpoint, however, has been expressed by the Seventh Circuit in United States v. Kajevic, 711 F.2d 767 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984), which concluded that the passage from Addonizio is an integral part of the approach in that case. Ultimately, however, the Kajevic court decided its case on the basis that, under the circumstances, the district court's delay was unreasonable. Technically, therefore, there is not yet a circuit split on the issue presented here. . Rule 35(b), it may be observed, is a flawed vehicle for assuring this separation between the spheres of the courts and the Parole Commission. The Parole Commission generally issues its presumptive parole date within several months of the time that the prisoner is incarcerated, yet the 120-day limit of Rule 35(b) also may start to run after the court of appeals and/or the Supreme Court dispose of any appeals or certiorari petitions concerning the underlying conviction — a process that can take more than a year. A district judge is thus put by the Rule itself in position to second-guess Parole Commission harshness by reducing sentence below the presumptive parole date. Perhaps the Advisory Committee on Criminal Rules may wish to consider this problem. . The dissenting opinion of Judge Gibbons suggests that we should remand to determine whether the district court really did second-guess the Parole Commission or whether it predicated its initial grant of Diggs’ Rule 35(b) motion on events taking place before the 120-day limit expired. The suggestion is not without force. If, taking all circumstances into account, we found" }, { "docid": "20340770", "title": "", "text": "109-110 (7th Cir.1981). The Seventh Circuit reiterated its strict interpretation of Rule 35(b) and the time limit thereby imposed upon the sentencing court in United States v. Kajevic, 711 F.2d 767, 770-771 (7th Cir.1983): ... [T]he background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. ... [I]f 120 days is not enough (time in which to hold a hearing, if necessary, and to act on the motion), or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have authority to do so; the courts of appeals do not. The Court in Kajevic declined to establish its strict interpretation of Rule 35(b) as the law of the circuit, however, and instead decided that case upon a narrower ground. In so doing, the court avoided a holding which “would both create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit.” 711 F.2d at 771. One circuit which has determined that the jurisdiction of the sentencing judge does extend beyond the 120-day limit is the Fourth. In United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), the court decided that the sentencing judge maintains jurisdiction beyond the 120-day limit as long as the defendant’s motion is filed before the deadline. Other circuits have interpreted Rule 35(b) similarly, as imposing a limitation on the period for filing a motion but not as a limitation on the court’s jurisdictional authority to decide it. See United States v. DeMier, 671 F.2d 1200, 1205-1206 (8th Cir.1982); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); Government of Virgin Islands v. Gereau, 603 F.2d 438, 442 (3d Cir.1979). However, the courts which have recognized the jurisdictional authority of the sentencing judge beyond the 120-day period specified in Rule 35(b) have ruled contrary to the dictum in United States v." }, { "docid": "347706", "title": "", "text": "determination requires us to examine the purposes of rule 35(b) and its 120-day time limit. As we have suggested on a prior occasion, see United States v. Ferri, 686 F.2d 147, 154-55 (3d Cir.1982), and as other circuit courts have likewise intimated, see United States v. Kajevic, 711 F.2d 767, 771 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 721, 79 L.Ed.2d 182 (1984); United States v. Krohn, 700 F.2d 1033, 1037 (5th Cir.1983); United States v. Pollack, 655 F.2d 243, 246 (D.C.Cir.1980); United States v. Stollings, 516 F.2d 1287, 1289 (4th Cir.1975), the 120-day time limit of rule 35(b) is simply another manifestation of a central fact underlying modern federal criminal procedure: the power to determine the length and conditions of an individual criminal’s punishment is dispersed between the judicial and executive branches. Under contemporary jurisprudence, the 120-day time limit serves chiefly to ensure that the power to reconsider sentencing decisions sensibly conferred on the district courts by Congress and the Supreme Court via rule 35(b) does not become a tool for overruling the Parole Commission after that body, in consonance with the Parole Commission and Reorganization Act, determines the likely release date of the criminal. In this case, the district court’s vacatur of its earlier decision granting Diggs’ rule 35(b) motion showed proper respect for the “separation of power” concerns underlying the 120-day time limit. Diggs had, by the time of action on the motion, served one-third of his ten-year sentence, and been the subject of Parole Commission action. The district court acknowledged that Diggs’ continued incarceration, in light of possible reform, “is now a matter for the Parole Commission to evaluate.” The district court also acknowledged that, in previously granting the rule 35(b) motion, it had consulted with the Chief Probation Officer and had continued to believe that Diggs’ “belated admission of his involvement in the offense, his change of attitude, his potential for rehabilitation, and his family situation militate favorably for an early release.” All of the above suggests that the district court was in a position to — and did — second-guess the Parole Commission" }, { "docid": "17168971", "title": "", "text": "Rule 35(b) was not a casual observation but an organic part of' the Court’s reasoning. That the judge could not act after 120 days was some indication that Congress wanted to confine release determinations to the Parole Commission. If the judge could sit on a motion filed within 120 days until he saw what the Parole Commission intended to do, as he did here, the Court’s conclusion would be undermined. If the Parole Commission had not taken a hard line with Kajevic, Judge Will probably would have let his original sentence stand. By reducing the sentence after learning of the Commission’s action he intervened in the release determination. Only the view that the 120-day limit is a limit just on the time to file allowed him to do this. Three circuits, disregarding the dictum in Addonizio, continue to follow Stollings. See Government of Virgin Islands v. Ger-eau, 603 F.2d 438, 442 (3d Cir.1979); United States v. Smith, 650 F.2d 206, 209 (9th Cir.1981); United States v. DeMier, 671 F.2d 1200,1205-06 (8th Cir.1982). Another has joined them in dictum. See United States v. Rice, 671 F.2d 455, 459 n. 5 (11th Cir.1982). But all are circuits that followed Stollings before Addonizio was decided. (The Eleventh Circuit in Rice cited the Fifth Circuit’s pre-Addonizio decision in Mendoza, a binding precedent in the Eleventh Circuit since it preceded the creation of that circuit out of the Fifth Circuit by mitosis.) The District of Columbia Circuit has expressed skepticism about the continued validity of Stollings after Addonizio. See United States v. Pollack, 655 F.2d 243, 246 (D.C.Cir.1980). And this circuit, in United States v. Inendino, 655 F.2d 108 (7th Cir.1981), intimated that the 120-day limitation is indeed a limitation on the judge’s power to act, and not just on the defendant’s time for filing his motion. “Rule 35 does not refer to any time period during which a defendant must make his motion to reduce sentence. It imposes instead a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional [citing Addonizio and, in" }, { "docid": "20340769", "title": "", "text": "that the 120 days does not merely refer to the time by which the defendant must file his motion: (Rule 35) imposes ... a limit on the time during which the sentencing judge may act to reduce the sentence. This time limit is jurisdictional, ... and it may not be extended at the discretion of the district court. One of the purposes of Rule 35 is to permit defendants to present new evidence not available at the time of sentencing, and a defendant may do so in motion to reconsider denial of a Rule 35 motion, but that evidence must be presented within the 120-day limit established in the rule. A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction, and the defendant would probably even have time to file a motion for reconsideration within the 120-day time period. 655 F.2d 108, 109-110 (7th Cir.1981). The Seventh Circuit reiterated its strict interpretation of Rule 35(b) and the time limit thereby imposed upon the sentencing court in United States v. Kajevic, 711 F.2d 767, 770-771 (7th Cir.1983): ... [T]he background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. ... [I]f 120 days is not enough (time in which to hold a hearing, if necessary, and to act on the motion), or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have authority to do so; the courts of appeals do not. The Court in Kajevic declined to establish its strict interpretation of Rule 35(b) as the law of the circuit, however, and instead decided that case upon a narrower ground. In so doing, the court avoided a holding which “would both" }, { "docid": "17168975", "title": "", "text": "p. 35-7 (1982); see United States v. Dewald, 669 F.2d 590, 592 (9th Cir.1982). If a judge is determined to deny a Rule 35(b) motion he need not resort to sitting on it; a timely denial without reasons will be, for all practical purposes, unreviewable. A more serious problem than malevolence is time. The problem is not only that district judges are busy — 120 days can pass in a wink — but that if the Rule 35(b) motion raises factual questions that require a hearing to resolve, it may be impossible to hold the hearing and act on the motion within 120 days even if the motion is filed at the very outset of the period. It is this practical problem that explains the decisions that in effect rewrite the rule. But if 120 days is not enough, or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have the authority to do so; the courts of appeals do not. The argument that a court should rewrite a statute because the legislature lacks the time to do so is of dubious propriety at best; it is particularly questionable when one is dealing with a rule promulgated by the Supreme Court subject to congressional veto. Such a rule can be amended more easily than a statute can. The placing of some time limitation on the court and not just on the movant cannot be dismissed as inadvertent. The limitation can be seen as necessary to keep the sentencing judge’s and the Parole Commission’s functions distinct. With no limitation of time the judge may be tempted to wait to see what the Parole Commission does before he acts on the motion. But we know from Addonizio that this is an improper temptation, for it is a temptation to intervene in the release determination and that is the Parole Commission’s responsibility rather than the sentencing judge’s. We realize that limiting the time within which the district judge can act on" }, { "docid": "17168974", "title": "", "text": "day after the denial of certiorari to file his motion for reduction of sentence. He had plenty of time. The sentence had been imposed almost two years before the Supreme Court denied cer-tiorari and more than two years before the Rule 35(b) motion was filed. Against the literal reading of Rule 35(b) it can be argued that a malevolent district judge might simply sit on the defendant’s motion till the 120 days expired, which would have the effect of automatically denying the motion. But since all courts agree that the judge loses jurisdiction after an unreasonable time, the malevolent judge need only wait long enough and the same result will be accomplished. The extremely limited appellate review of an order denying a Rule 35(b) motion has a bearing here. “Since the motion for reduction of sentence is a plea for leniency, decision on the motion is as close to being a matter of pure discretion as any other under the Rules, with the exception of the sentence itself.” 8A Moore’s Federal Practice ¶ 35.02[4] at p. 35-7 (1982); see United States v. Dewald, 669 F.2d 590, 592 (9th Cir.1982). If a judge is determined to deny a Rule 35(b) motion he need not resort to sitting on it; a timely denial without reasons will be, for all practical purposes, unreviewable. A more serious problem than malevolence is time. The problem is not only that district judges are busy — 120 days can pass in a wink — but that if the Rule 35(b) motion raises factual questions that require a hearing to resolve, it may be impossible to hold the hearing and act on the motion within 120 days even if the motion is filed at the very outset of the period. It is this practical problem that explains the decisions that in effect rewrite the rule. But if 120 days is not enough, or if there should be no limit on the time within which the judge can act, as there is none under Rule 35(a), the rule ought to be rewritten by those who have the authority to" }, { "docid": "8440140", "title": "", "text": "time within which the trial court has power to act, however, this circuit and other circuits that have considered the issue have not applied the rule in a mechanical fashion. United States v. Kajevic, 711 F.2d 767 (7th Cir. 1983); United States v. Krohn, 700 F.2d 1033 (5th Cir.1983); United States v. Stoll-ings, 516 F.2d 1287 (4th Cir.1975). In Stollings, the Fourth Circuit recognized that it is sometimes impractical for a judge to act within the 120-day period. In that case, upon missing the Rule 35(b) deadline by three days, the trial judge declined to rule on the defendant’s motion because he believed he had lost jurisdiction. On appeal, this Court held that where delay is based upon reasonable grounds, a district judge may properly retain jurisdiction over a timely filed motion for reduction of sentence. In Stollings, however, Judge Haynsworth specifically warned that the time limitation of Rule 35(b) has “as its dual purpose the protection of the district court from continuing and successive importunities and to assure that the district court’s power to reduce a sentence will not be misused as a substitute for the consideration of parole by the Parole Board.” 516 F.2d at 1289. Likewise, in United States v. Mendoza, 565 F.2d 1285 (5th Cir.1978), the Fifth Circuit noted that limiting the retention of Rule 35 jurisdiction to a reasonable time “should prevent the possibility, however remote, of a district court usurping the function of the Parole Board. .. . ” Id. at 1291. Most recently, in United States v. Kajevic, 711 F.2d at 767, the Seventh Circuit held that “[wjhen a district judge delays action on a Rule 35(b) motion till long after the expiration of the 120 days, for the purpose or with the likely effect of assuming the function of the parole authorities, his delay is unreasonable.” Id. 772. See also United States v. Krohn, 700 F.2d at 1033 (holding district court’s ten-month delay in reducing defendant’s sentence was reasonable because court did not deliberately or effectively intervene in matters committed to authority or Parole Commission). In this case, the trial judge purposely" }, { "docid": "17168977", "title": "", "text": "a Rule 35(b) motion could create a genuine hardship if the judge became incapacitated before he could act on it, and his incapacity lasted till after the 120 days had run. But Rule 35(b) gives the power to reduce sentences to the “court,” not a particular judge thereof, so another judge would have the power to act in the place of the sentencing judge if the latter was unavailable. Although as should be evident by now we have serious doubts whether a district judge can ever reduce a sentence under Rule 35(b) after the 120-day time limit has passed, we are reluctant to hold that he cannot. Such a holding would both create a conflict with other circuits and disrupt what has become common practice among the district judges of this circuit. Fortunately a narrower ground of decision is available in this case. The circuits that hold that the judge’s power to reduce a sentence under Rule 35(b) is not circumscribed by the 120-day limitation in the rule also hold that he must act within a reasonable period, which depends on the particular circumstances of the case. See, e.g., Stollings, supra, 516 F.2d at 1289-90. Judge Will’s delay in acting on Kajevic’s motion was unreasonable in the circumstances, for a reason made clear by Addonizio: the judge waited to act till he could see what the Parole Commission would do. By delaying for this reason, and eventually reducing sentence when he found out that the Parole Commission was not disposed to show any lenity, Judge Will was intervening in the release determination, which the Supreme Court held in Ad-donizio is the responsibility of the Parole Commission rather than of the sentencing judge. When a district judge delays action on a Rule 35(b) motion till long after the expiration of the 120 days, for the purpose or with the likely effect of assuming the function of the parole authorities, his delay is unreasonable. However flexibly interpreted, the time limitation in Rule 35(b) has as one of its purposes “to assure that the district court’s power to reduce a sentence will not" }, { "docid": "17168973", "title": "", "text": "a footnote, Hunter], and it may not be extended at the discretion of the district court.” Id. at 109 (footnotes omitted). “A defendant can easily avoid a situation such as occurred in this case by filing his Rule 35 motion within the first sixty days after sentencing. The court would then have adequate time to decide the motion before the expiration of its jurisdiction .. .. ” Id. at 110 (footnotes omitted and emphasis added). Although Hunter and Inendino did not involve timely Rule 35(b) motions and hence are distinguishable from the Stollings line, their reasoning applies to timely motions. In addition, the background and language of Rule 35(b), the Notes of the Advisory Committee, Addonizio, and the importance of having clear jurisdictional criteria point to the same conclusion: the district judge loses jurisdiction after 120 days. While Judge Will’s absence when the motion was filed, and the government’s acquiescence in his acting after the expiration of the 120 days, are regrettable, it is hard to understand why the defendant’s counsel waited till the 109th day after the denial of certiorari to file his motion for reduction of sentence. He had plenty of time. The sentence had been imposed almost two years before the Supreme Court denied cer-tiorari and more than two years before the Rule 35(b) motion was filed. Against the literal reading of Rule 35(b) it can be argued that a malevolent district judge might simply sit on the defendant’s motion till the 120 days expired, which would have the effect of automatically denying the motion. But since all courts agree that the judge loses jurisdiction after an unreasonable time, the malevolent judge need only wait long enough and the same result will be accomplished. The extremely limited appellate review of an order denying a Rule 35(b) motion has a bearing here. “Since the motion for reduction of sentence is a plea for leniency, decision on the motion is as close to being a matter of pure discretion as any other under the Rules, with the exception of the sentence itself.” 8A Moore’s Federal Practice ¶ 35.02[4] at" }, { "docid": "20340772", "title": "", "text": "Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). In Addonizio, the Supreme Court stated that the 120-day time period in Rule 35(b) “is jurisdictional and may not be extended.” Id. at 189, 99 S.Ct. at 2243. Clearly, the Court interpreted Rule 35(b) as imposing a limitation on the authority of judges to act, not as a deadline by which petitioners must file their motions. Relying on the Court’s reading of Rule 35(b), the Seventh Circuit in Inendino and Kajevic reached the same conclusion. See Inen dino, supra, at 109 and Kajevic, supra, at 770. Such clear indications by the Supreme Court and Seventh Circuit of the limitations imposed on the sentencing judge by Rule 35(b) will not be ignored by this Court. In Cotton, this Court stated that the dictum in Kajevic would be applied “where motions for reduction of sentence are filed so near the deadline as to preclude both a reasonable opportunity for the Government to respond and meaningful consideration by the Court itself.” United States v. Cotton, supra, at 202. This Court announced in Cotton that all future Rule 35(b). motions would be denied on jurisdictional grounds where the motion was: (1) filed in the twilight of the 120-day period; (2) not resolved by the Court prior to the expiration of that period; and (3) not supported by or premised on evidence or a change of circumstances discovered within the last days of the time limitation. Id. The defendant’s motion meets all of the above criteria: it was filed the day before the 120-day jurisdictional limit expired; it was not resolved by the Court before the 120-day deadline; and its belated filing was not justified by a late-occurring change in circumstances. Due to the recentness of the Cotton decision, the Court does not expect that the defendant was aware of the prescription of these particular criteria to Rule 35(b) motions. However, the application of these common sense measures to this case is well-founded when the Supreme Court and Seventh Circuit views on the jurisdictional limitation were announced long ago. Furthermore, when the defendant has" } ]

[ { "docid": "22402547", "title": "", "text": "U. S. 192 (1944), a case arising under the Railway Labor Act. Steele held that when Congress empowered unions to bargain exclusively for all employees in a particular bargaining unit, and thereby subordinated individual interests to the interests of the unit as a whole, it imposed on unions a correlative duty “inseparable from the power of representation” to exercise that authority fairly. Id., at 202-204; see Humphrey v. Moore, 375 U. S. 335, 342 (1964); Vaca v. Sipes, 386 U. S. 171, 182 (1967); Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 564 (1976) . The fair representation doctrine thus serves as a “bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.” Vaca v. Sipes, supra, at 182. Under the doctrine, a union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collective-bargaining agreements. See, e. g., Conley v. Gibson, 355 U. S. 41, 46 (1957); Humphrey v. Moore, supra, at 342; Hines v. Anchor Motor Freight, Inc., supra, at 563-567. In particular, a union breaches its duty when its conduct is “arbitrary, discriminatory, or in bad faith,” as, for example, when it “arbitrarily ignore [s] a meritorious grievance or processes] it in [a] perfunctory fashion.” Vaca v. Sipes, supra, at 190, 191. The right to bring unfair representation actions is judicially “implied from the statute and the policy which it has adopted,” Steele v. Louisville & Nashville R. Co., supra, at 204, and Congress has not specified what remedies are available in these suits. Our function, therefore, is to implement a remedial scheme that will best effectuate the purposes of the Railway Labor Act, recognizing that the overarching legislative goal is to facilitate collective bargaining and to achieve industrial peace. See 323 U. S., at 204; Textile Workers v. Lincoln Mills, 353 U. S. 448, 456-457 (1957); Machinists v. Street, 367 U. S. 740, 759 (1961); cf. Clearfield Trust Co. v. United States, 318 U. S. 363 (1943). Whether awarding punitive damages would comport with this national labor" } ]

[ { "docid": "18161871", "title": "", "text": "ratified because of opposition by TWA workers at other system locations” (App. 1393a). TWA was found to have “included such a proposal in the early negotiations and at no time strongly opposed such a provision” (App. 1402a). The union points out that TWA’s negotiator was still asking for a no-strike requirement for the Space Center as late as January 12, 1970 (App. 1161a, 1204a-1205a), the day before final sign-off by the International and TWA. Nonetheless, ample evidence supports the district court’s finding that IAM negotiators withdrew their proposal for retroactive system seniority and that only the proposal for prospective seniority, as suggested by Fowler of the District Lodge, received consideration by the negotiators during the weeks prior to final agreement in January, 1970. . As in Steele v. Louisville & Nashville R.R. Co., supra, the union herein was the certified bargaining, representative under § 2 (Fourth) of the Railway Labor Act, 45 U.S.C. § 152 (Fourth) (1970). . Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Graham v. Brotherhood of Locomotive Firemen & Enginemen, 338 U.S. 232, 70 S.Ct. 14, 94 L.Ed. 22 (1949). . See Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Syres v. Oil Workers International Union, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955). . The development of this important labor law doctrine has been chronicled elsewhere and need not be repeated here. See Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976); Vaca v. Sipes, 386 U.S. 171, 177-188, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964); Bazarte v. United Transp. Union, 429 F.2d 868, 871-872 (3d Cir. 1970); Brady v. TWA, Inc., 401 F.2d 87, 94 (3d Cir. 1968), cert. denied sub nom. IAM v. Brady, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969); see also Clark, The Duty of Fair Representation: A Theoretical Structure, 51 Texas L.Rev. 1119 (1973); Cox, The" }, { "docid": "1985242", "title": "", "text": "45 U.S.C.A. § 152 (1972). . See Steele v. Louisville and Nashville R. Co., etc., 323 U.S. 192, 202-203, 65 S.Ct. 226, 232, 89 L.Ed. 173, 183 (1944) ; Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; Tunstall v. Brotherhood of L.F.& E., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944), and Brotherhood of R. Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283 (1952). . Steele v. Louisville & Nashville R. Co., Brotherhood of L. F. & E., etc., 323 U.S. 192, 203, 65 S.Ct. 226, 232, 89 L.Ed. 173, 183 (1944) : “[The RLA’s imposition of a duty of fair representation] does not mean that the statutory representative of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented. Variations in the forms of the contract based on differences relevant to the authorized purposes of the contract in conditions to which they are to be applied . . . are within the scope of the bargaining representation of a craft, all of whose members are not identical in their interest or merit.” Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 686, 97 L.Ed. 1048, 1058 (1953) : “Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement .affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. A wide, range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion.” . The NLRA has been construed to impose a statutory duty of fair representation equivalent to that which Steele v. Louisville & Nashville R. Co., Brotherhood of L. F. & E., etc., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), held to be imposed by the RLA. See Vaca v. Sipes, 386" }, { "docid": "18297224", "title": "", "text": "face the question whether the federal courts have jurisdiction over damages actions brought under the Act. As in virtually all of the cases decided under the Act up to the present time, the question before the court in Columbia Power Trades Council was whether the Act empowers the district courts to grant injunctive relief. The courts which have considered that question have all properly concluded that the district courts lack such authority. However, for the reasons expressed in our earlier opinion, we are still persuaded that the federal courts have jurisdiction over damages actions brought by federal employees against their unions and their employers. The duty of a union fairly to represent all members of the bargaining unit is inherent in the Act, just as it is inherent in both the National Labor Management Relations Act, 29 U.S.C. §§ 141 et seq., and the Railway Labor Act, 46 U.S.C. §§ 151 et seq. As the Supreme Court has noted, “Because ‘[t]he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit, Vaca v. Sipes, 386 U.S. 171, 182 [87 S.Ct. 903, 912, 17 L.Ed.2d 842] (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, ‘the responsibility and duty of fair representation.’ Humphrey v. Moore, [375 U.S. 335,] ... 342 [84 S.Ct. 363, 368, 11 L.Ed.2d 370]. The union as the statutory representative of the employees is ‘subject always to complete good faith and honesty of purpose in the exercise of its discretion.’ Ford Motor Co. v. Huffman, [345 U.S. 330,] ... 338 [73 S.Ct. 681, 686, 97 L.Ed. 1048].” That this duty of fair representation under the NLRA may be judicially enforced was made clear in Vaca v. Sipes, 386 U.S. 171 [87 S.Ct. 903, 17 L.Ed.2d 842], United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 n.2, 101 S.Ct. 1559, 1562 n.2, 67 L.Ed.2d 732 (1981), quoting Hines v. Anchor Motor Freight, Inc.," }, { "docid": "8437503", "title": "", "text": "had a right to a jury trial. 607 F.2d at 143. Although the Cox case involved a claim under the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 141-187, rather than the Railway Labor Act, the distinction is insignificant. The Union’s duty of fair representation was originally derived from the Railway Labor Act, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), (citing Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)), and was later extended to unions certified under the NLRA. Vaca 87 S.Ct. at 910 (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). Since the Huffman case, the union’s duty of fair representation has been the same duty whether the union involved is covered by the NLRA or the RLA. See, e.g., International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970); Seymour v. Olin Corp., 666 F.2d 202 (5th Cir.1982); Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir.1981), cert, denied, 454 U.S. 892, 102 S.Ct. 386, 70 L.Ed.2d 206 (1981). Accordingly, the Cox analysis establishing the right to a jury trial in NLRA cases applies with equal force to RLA duty of fair representation cases. B. The Wrongful Discharge Action We need not decide whether a wrongful discharge action under the Railway Labor Act is one in which a plaintiff is entitled to a jury trial under the criteria of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). The Supreme Court mandated in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances can the right to a jury trial be lost through prior determination of equitable claims.” Id. at 957. The factual issues common to the legal and the equitable claims must be submitted" }, { "docid": "3587291", "title": "", "text": "Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 909, 17 L.Ed.2d 842 (1967); Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 199 and 202-03, 65 S.Ct. 226, 230 and 231-32, 89 L.Ed. 173 (1944), these sections do not provide expressly for a limitations period. Hence, we are required to borrow an appropriate statute of limitations. During the pendency of this appeal, the Supreme Court decided the ease of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). The Court in Del-Costello held that where an employee brought an action under the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq., against both his employer for breach of the collective bargaining agreement (29 U.S.C. § 185) and his union for breach of the duty of fair representation, the suit was governed by the six-month period of limitations mandated in § 10(b) of the NLRA, 29 U.S.C. § 160(b). Although the instant case does not arise under the NLRA, we nonetheless hold that on the particular facts of this case, where Barnett made claims against his employer and his union similar to those in DelCostello, the rationale of DelCostello requires the application of the six-month period under § 10(b) of the NLRA to Barnett’s cause of action. The Supreme Court has repeatedly held that when Congress has not expressly provided a statute of limitations governing federal statutory actions, a court must apply the most “‘appropriate state statute of limitations.’ ” United Parcel Service, Inc. v. Mitchell, supra at 60, 101 S.Ct. at 1560 (quoting Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975) and Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13, 16 L.Ed.2d 192 (1966)). This has been the approach followed by some courts when determining a limitations period for a duty of fair representation claim under the RLA. See Price v. Southern Pacific Transportation Co., 586 F.2d 750, 752-53 (9th Cir.1978); Brotherhood of Locomotive Firemen and Enginemen v. Mitchell, 190 F.2d 308, 313 (5th" }, { "docid": "2238062", "title": "", "text": "Foust, 442 U.S. 42, n.8, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-7 n.2, 101 S.Ct. 1559, 1565-1566 n.2, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring). The cause of action against a union for breach of the duty of fair representation, then, arises under federal law; and the district courts have federal question jurisdiction over such a claim. Similarly, in the Civil Service Reform Act of 1978, there is an implied duty of fair representation owed by a union to all members of the bargaining unit, despite the fact that there is no explicit provision establishing such a duty. Moreover, just as the implicit duty of fair representation gives rise to a cause of action under the NLRA and the RLA despite the otherwise narrowly limited role of the courts under those statutes, the implied duty of fair representation in the Civil Service Reform Act should be enforceable in the district court under 28 U.S.C. § 1331. This is especially true since one of the primary rationales for allowing such actions under the NLRA and the RLA is equally applicable to actions such as the present one. The rationale is that the administrative boards set up under the various labor acts are more concerned with broad questions of policy than with individuals, so that if individuals are not allowed to enforce the duty of fair representation in court, they may gain no practical benefit from the labor laws. See Vaca v. Sipes, supra, 386 U.S. at 182-83, 87 S.Ct. at 912-913. The subordination of the individual’s interests to the interest of the group by the administrative board is precisely what has occurred in plaintiff’s case. The FLRA settled his unfair practices charge against the union instead of issuing a complaint; and the settlement granted no relief to plaintiff in connection with what FLRA did conclude was an unfair labor practice by the union. The board was concerned only with preventing future abuses by the union. Plaintiff, then, lacks an adequate administrative remedy as did the petitioner in Vaca v. Sipes. He" }, { "docid": "2476085", "title": "", "text": "under Rule 12(b)(1). III. DISCUSSION A. Duty of Fair Representation Felice’s principal challenge is to the district court’s holding that Local 30, Sever, and Miller did not owe him a duty of fair representation under the National Labor Relations Act. Any claim that Felice may have asserted for breach of the duty of fair representation under state law was based on Felice’s initial contention that he was an employee of the County of West-moreland. Felice does not dispute the district court’s implicit finding that he was not an employee of the County of Westmore-land. Thus, Felice’s argument on appeal is limited to the narrow proposition that because he was a union member, Local 30 owed him a duty of fair representation under federal law in its dealings with the County of Westmoreland regarding his potential employment. Felice’s claim raises a legal question over which we have plenary review. The NLRA provides for the certification of a union as the exclusive bargaining representative “in respect to rates of pay, wages, hours of employment, or other conditions of employment_” 29 U.S.C. § 159(a) (1988). It has now been well established that a union certified as an exclusive bargaining representative has a correlative duty of fair representation. In Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), the seminal case on the statutory duty of fair representation, the Supreme Court reviewed the history of its recognition of such a duty, which began with cases under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1988), alleging racial discrimination by unions, see Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202-04, 65 S.Ct. 226, 232-33, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944), and was extended shortly thereafter to the NLRA, see Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). Jurisdiction over a claim that a union has breached its duty of fair representation is based on 28 U.S.C. §" }, { "docid": "23307137", "title": "", "text": "U.S.C. § 1337. The duty of fair representation is a statutory duty implied from the grant to the union by section 9(a) of the National Labor Relations Act, 29 U. S.C. § 159(a), of exclusive power to represent all employees of the collective bargaining unit. Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. 903, 17 L.Ed.2d 842; Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953); Williams v. Pacific Maritime Ass’n, 384 F.2d 935, 936-937 (9th Cir. 1967). The National Labor Relations Act is an “Act of Congress regulating commerce.” See Capital Service, Inc. v. NLRB, 347 U.S. 501, 504, 74 S.Ct. 699, 98 L.Ed. 887 (1954). Suit for breach of the duty is one “arising under” such a statute within the meaning of 28 U.S.C. § 1337. On the basis of this analysis, the courts of appeals of three circuits have held that section 1337 confers jurisdiction over suits alleging breach of the duty of fair representation. Waters v. Wisconsin Steel Works, 427 F.2d 476, 490 (7th Cir. 1970); De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 283 n.1 (1st Cir. 1970); and Nedd v. United Mine Workers, 400 F.2d 103, 106 (3d Cir. 1968). This conclusion is supported by Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, 213, 65 S.Ct. 235, 89 L.Ed. 187 (1945), which holds that section 1337 confers jurisdiction upon federal district courts over suits for breach of a duty of fair representation implied from “comparable provisions of the Railway Labor Act.” Ford Motor Co. v. Huffman, supra, 345 U.S. at 337, 73 S.Ct. at 686. See note 5 supra; International Ass’n of Machinists v. Central Airlines, 372 U.S. 682, 690 n.13, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963); Brady v. TWA, 401 F.2d 87, 94 (3d Cir. 1968). It is also supported by Syres v. Oil Workers, International, 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), which involved 28 U.S.C. § 1331, the companion statute conferring subject matter jurisdiction in cases involving suits arising under a federal statute. See Machinists" }, { "docid": "9652672", "title": "", "text": "might be free to form a members-only union and interact with their employer on that basis. But, to repeat, that is not the system that the United States has adopted. Consequences flow from the union’s status as the exclusive representative of all members of the bargaining unit. The most significant is what is known as the duty of fair representation. See Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944) (recognizing the duty of fair representation under the Railway Labor Act); Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 97 L.Ed. 1048 (1953) (extending duty of fair representation to the National Labor Relations Act). The duty of fair representation requires the exclusive bargaining representative (i.e., the union) to “serve the interests of all members [of the bargaining unit] without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). This duty is not limited to the negotiation process; it covers all union representational activity. See id. at 190-91, 87 S.Ct. 903 (duty of fair representation extends to grievance and arbitration); Air Line Pilots Ass’n, Int’l v. O’Neil, 499 U.S. 65, 67, 111 S.Ct. 1127, 113 L.Ed.2d 51 (1991) (“We hold that the rule announced in Vaca ... applies to all union activity....”). The Supreme Court’s opinion in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977), summarized the scope of those duties well: The designation of a union as exclusive representative carries with it great responsibilities. The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones. They often entail expenditure of much time and money.... The services of lawyers, expert negotiators, economists, and a research staff, as well as general administrative personnel, may be required. Moreover, in carrying out these duties, the union is obliged fairly and equitably to represent all employees" }, { "docid": "891119", "title": "", "text": "as a party under Rule 19. However, those matters were not presented in this case. On the other hand, the cause of action against the union pleaded by the plaintiff is a statutory right based upon the union’s duty to fairly represent him. A breach of that statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory or in bad faith. Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The sole actor in such a cause of action is the union. The employer is not a participant in the alleged wrong unless, of course, the employee alleges that his union and his employer conspired against him. The union’s duty of fair representation, first enunciated by the Supreme Court in Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), requires the exclusive bargaining representative “to serve the interest of all members without hostility or discrimination toward any.” Vaca v. Sipes, supra, at 177 [65 S.Ct. 226]. This duty was derived from a union’s statutory right to be the exclusive representative of the members of a designated unit, from which the Supreme Court found an implied statutory obligation to give members equal representation. See Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). The duty of fair representation is thus a federal obligation which has been judicially fashioned from national labor statutes. Abrams v. Carrier Corp., 434 F.2d 1234, 1251 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971). The possibility that an employee may allege such wrongdoing by his employer does not make the employer an indispensable party when the employee chooses not to do so or it has been established, as in this case, that the employer committed no wrong. The basis of the unopposed summary judgment in favor of the employer was the fact that the plaintiff admitted that his discharge was not based on any of the improper grounds contained" }, { "docid": "2238060", "title": "", "text": "to pursue his administrative remedies (which he has done), and then appeal to the Ninth Circuit from a final order of the FLRA. This is evidently a case of the first impression on this question. The jurisdiction of the federal courts under the Act has so far been decided only in contexts in which the plaintiff has requested injunctive relief. See, e.g., United States v. Professional Air Traffic Controllers Organization (PATCO), 653 F.2d 1134 (7th Cir. 1981), cert. denied, - U.S. -, 102 S.Ct. 639, 70 L.Ed.2d 617 (1981) (district court did have jurisdiction to enjoin strike); National Federation of Federal Employees, Local 1263 v. Defense Language Institute, 493 F.Supp. 675 (N.D.Cal.1980) (district court lacked jurisdiction to grant plaintiff union an injunction requiring defendants to bargain over the impact of a proposed reduction in force); Clark v. Mark, Case No. 79-CV-777 (N.D.N.Y.1980) (district court lacked jurisdiction to grant union injunctive relief requiring employer to enforce the terms of a collective bargaining agreement). We have located no cases which consider whether an action for damages of the present sort can be maintained in federal court. The damages action consists of two components: the suit against the union and the suit against the employer. They are analyzed separately below. 1. Alleged breach of duty of fair representation by the union. As the parties have suggested, the key analogy here is the manner in which labor relations are handled in the private sector. The duty of fair representation owed by a union to the members of its bargaining unit has been found in both the NLRA, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), and the Railway Labor Act (“RLA”), Tunstall v. Brotherhood of Locomotive Firemen and Engineermen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Steele v. Louisville & Nashville Railway Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), — not in any express provision, but implicit in the statutes themselves. International Brotherhood of Electrical Workers v." }, { "docid": "22307683", "title": "", "text": "443 (E.D.Pa.1969). . By error the verdict and judgment were entered only against United Transportation Union, one of the defendants. The parties have corrected this error by stipulation and an appropriate amended judgment has been entered in the district court against both United Transportation Union and William Penn Lodge No. 319. . See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) ; Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) ; Ford Motor Co. v. Huffman, 345 U.S. 330, 337, 73 S.Ct. 681, 97 L.Ed. 1048 (1953) ; Brady v. Trans World Airlines, Inc., 401 F.2d 87, 94 (3 Cir.1968), cert. denied 393 U.S. 1048, 89 S.Ct. 681, 21 L.Ed.2d 691 (1969) ; Gainey v. Brotherhood of Ry. & Steamship Clerks, etc., 313 F.2d 318, 322— 323 (3 Cir. 1963). See generally, Lewis, Fair Representation in Grievance Administration : Vaca v. Sipes, 1967 Sup.Ct. Rev. 81, 99 et seq. . See Tunstall v. Brotherhood of Locomotive Firemen, etc., 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944) ; Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). . Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 909 (1967). See cases cited supra, n. 6. . See Vaca v. Sipes, 386 U.S. 171, 190-193, 87 S.Ot. 903 (1967). . Id. at 193,'87 S.Ct. 903. . Id. at 192-193, 87 S.Ot. 903. . Id. at 193, 87 S.Ct. at 918. . Of. Id. at 191, 87 S.Ct. 903." }, { "docid": "8437502", "title": "", "text": "Cir.1979). In Cox, the court cited Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970), for the proposition that the Seventh Amendment preservation of the right to trial by jury “in suits at common law” encompasses suits in which legal rights are to be determined, in contrast to those in which equitable rights and remedies alone are involved. 607 F.2d at 142. The Cox court applied the three factors set out in Ross for deciding whether there is a right to jury trial: (1) the customary manner of trying such a cause before the merger of law and equity; (2) the kind of remedy sought; and (3) the practical abilities and limitations of juries. 90 S.Ct. at 738 n. 10. The court found that (1) Cox’s duty of fair representation claim was analogous to a common law tort customarily tried to a jury; (2) Cox sought the traditional legal remedy of damages; and (3) a jury could adequately find the facts and award damages. The court therefore concluded that the plaintiff had a right to a jury trial. 607 F.2d at 143. Although the Cox case involved a claim under the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 141-187, rather than the Railway Labor Act, the distinction is insignificant. The Union’s duty of fair representation was originally derived from the Railway Labor Act, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), (citing Steele v. Louisville & N.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944)), and was later extended to unions certified under the NLRA. Vaca 87 S.Ct. at 910 (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953)). Since the Huffman case, the union’s duty of fair representation has been the same duty whether the union involved is covered by the NLRA or the RLA. See, e.g., International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970); Seymour" }, { "docid": "22157247", "title": "", "text": "be futile. B. Duty of fair representation action against Local 21 Plaintiffs assert that Local 21 violated its duty of fair representation by participating or at least acquiescing in Harvester’s discriminatory hiring policies. They maintain that this breach of duty by Local 21 states a cause of action under section 301(a). Although plaintiffs again read section 301(a) too broadly, we believe that their complaint, if liberally construed, states a cause of action under that section. Therefore, on remand of this case the district court should reconsider plaintiffs’ complaint against Local 21 under section 301(a). Plaintiffs are incorrect in arguing that section 301(a) is intended to provide federal jurisdiction for suits seeking relief for violation of the duty of fair representation, Sciaraffa v. Oxford Paper Co., 310 F.Supp. 891 (S.D.Me. 1970). The origin of that duty is statutory, first recognized in cases involving racial discrimination by unions certified as exclusive bargaining agents under the Railway Labor Act. Steele v. Louisville & Nashville R. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1943); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 120, 65 S.Ct. 235, 89 L.Ed. 187 (1943). The Supreme Court subsequently held that the provisions of the National Labor Relations Act included a similar duty, Syres v. Oil Workers International Union,. 350 U.S. 892, 76 S.Ct. 152, 100 L.Ed. 785 (1955), rev’g 223 F.2d 739 (5th Cir. 1955); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). Suits for breach of statutory duty may be brought under federal question or civil rights jurisdictional provisions. Brady v. Trans World Airlines, Inc., 401 F.2d 87 (3d Cir. 1968); Williams v. Pacific Maritime Assoc., 384 F.2d 935 (9th Cir. 1967). The duty of fair representation has only limited relevance to actions under section 301(a). A union can be joined as a defendant under that section, if by breach of its statuory duty, the union has prevented presentment or enforcement of an employee grievance under the collective bargaining agreement. Vaca v. Sipes, supra, 386 U.S. at 197, 87 S.Ct. 903, n. 18. In" }, { "docid": "2238061", "title": "", "text": "the present sort can be maintained in federal court. The damages action consists of two components: the suit against the union and the suit against the employer. They are analyzed separately below. 1. Alleged breach of duty of fair representation by the union. As the parties have suggested, the key analogy here is the manner in which labor relations are handled in the private sector. The duty of fair representation owed by a union to the members of its bargaining unit has been found in both the NLRA, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), and the Railway Labor Act (“RLA”), Tunstall v. Brotherhood of Locomotive Firemen and Engineermen, 323 U.S. 210, 65 S.Ct. 235, 89 L.Ed. 187 (1944); Steele v. Louisville & Nashville Railway Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944), — not in any express provision, but implicit in the statutes themselves. International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, n.8, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 66-7 n.2, 101 S.Ct. 1559, 1565-1566 n.2, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring). The cause of action against a union for breach of the duty of fair representation, then, arises under federal law; and the district courts have federal question jurisdiction over such a claim. Similarly, in the Civil Service Reform Act of 1978, there is an implied duty of fair representation owed by a union to all members of the bargaining unit, despite the fact that there is no explicit provision establishing such a duty. Moreover, just as the implicit duty of fair representation gives rise to a cause of action under the NLRA and the RLA despite the otherwise narrowly limited role of the courts under those statutes, the implied duty of fair representation in the Civil Service Reform Act should be enforceable in the district court under 28 U.S.C. § 1331. This is especially true since one of the primary" }, { "docid": "23527343", "title": "", "text": "$1,500. . One Western Electric supervisor recommended to plaintiff that he resign rather than be discharged so he could be hired at another Western Electric plant. . Where no federal statute of limitation exists, the federal law is that the state law then applies, 383 U.S. at 703-704, 86 S.Ct. 1107. Cf. Sandobal v. Armour and Co., 429 F.2d 249 (8 Cir. 1970). . As the Supreme Court recognized in Vaca v. Sipes, 386 U.S. 171, 177, 87 S. Ct. 903, 909, 17 L.Ed.2d 842 (1967): “It is now well established that, as the exclusive bargaining representative of the employees in Owens’ bargaining unit, the Union had a statutory duty fairly to represent all of .those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U.S. 330, [73 S.Ct. 681, 97 L.Ed. 1048]; Syres v. Oil Workers International Union, 350 U.S. 892, [76 S.Ct. 152, 100 L.Ed. 785], and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U.S. 335, [84 S.Ct. 363,11 L.Ed.2d 370]. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U.S. 192, [65 S.Ct. 226, 89 L.Ed. 173] ; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, [65 S.Ct. 235, 89 L.Ed. 187], and was soon extended to unions certified under the N. L. R. A., see Ford Motor Co. v. Huffman, supra. Under this doetrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., at 342, [84 S.Ct., at 367].” (Emphasis ours.) . Compare this court’s analysis of the pleadings in a complicated construction damage suit, Peter Kiewit Sons’ Co. v. Summit Constr. Co., 422 F.2d 242 (8 Cir." }, { "docid": "18297225", "title": "", "text": "subordinates the interests of an individual employee to the collective interests of all employees in a bargaining unit, Vaca v. Sipes, 386 U.S. 171, 182 [87 S.Ct. 903, 912, 17 L.Ed.2d 842] (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, ‘the responsibility and duty of fair representation.’ Humphrey v. Moore, [375 U.S. 335,] ... 342 [84 S.Ct. 363, 368, 11 L.Ed.2d 370]. The union as the statutory representative of the employees is ‘subject always to complete good faith and honesty of purpose in the exercise of its discretion.’ Ford Motor Co. v. Huffman, [345 U.S. 330,] ... 338 [73 S.Ct. 681, 686, 97 L.Ed. 1048].” That this duty of fair representation under the NLRA may be judicially enforced was made clear in Vaca v. Sipes, 386 U.S. 171 [87 S.Ct. 903, 17 L.Ed.2d 842], United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 67 n.2, 101 S.Ct. 1559, 1562 n.2, 67 L.Ed.2d 732 (1981), quoting Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 564, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976). Thus, there was no need for Congress to write into the Civil Service Reform Act of 1978 a section specifically conferring upon the district courts the jurisdiction to hear breach of duty of fair representation cases brought by federal employees. The district courts already have jurisdiction under 28 U.S.C. § 1331 to hear claims that the duty of fair representation, which duty arises out of the Act, has been breached. Plaintiff’s claim that his federal employer breached the collective bargaining agreement likewise has “its own discrete jurisdictional base.” United Parcel Service v. Mitchell, supra, 451 U.S. at 66, 101 S.Ct. at 1566. Such a claim is, in essence, one for breach of contract. See Vaca v. Sipes, supra, 386 U.S. at 183-84, 87 S.Ct. at 913. Since, in a non-diversity action, the federal courts lack jurisdiction over contract claims against private parties, Congress needed to create a specific jurisdictional grant whereby private sector employees could sue their employers for breaching a collective bargaining" }, { "docid": "3404465", "title": "", "text": "U.S. 330 [73 S.Ct. 681, 97 L.Ed. 1048]; Syres v. Oil Workers International Union, 350 U.S. 892 [76 S.Ct. 152, 100 L.Ed. 785], and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U.S. 335 [84 S.Ct. 363, 11 L.Ed.2d 370]. The statutory duty of fair representation was developed over 20 years ago in a series of cases involving alleged racial discrimination by unions certified as exclusive bargaining representatives under the Railway Labor Act, see Steele v. Louisville & N. R. Co., 323 U.S. 192, [65 S.Ct. 226, 89 L.Ed. 173]; Tunstall v. Brotherhood of Locomotive Firemen, 323 U.S. 210, [65 S.Ct. 235, 89 L.Ed. 187], and was soon extended to unions certified under the N.L.R.A., see Ford Motor Co. v. Huffman, supra. Under this doctrine, the exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct. Humphrey v. Moore, 375 U.S., at 342 [84 S.Ct. at 367]. It is obvious that Owens’ complaint alleged a breach by the Union of a duty grounded in federal statutes, and that federal law therefore governs his cause of action. B. g.. Ford Motor Co. v. Huffman, supra. 386 U.S. at 177, 87 S.Ct. at 909. . The cases upon which the plaintiff relies are plainly distinguishable. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964) were both reviews of state court suits. The Court held no more than that the cause of action against the union was one which arose under, and was governed by, federal law. 386 U.S. at 177, 87 S.Ct. 903, 375 U.S. at 343-344, 84 S.Ct. 363. Similarly, in Brady v. Trans World Airlines, 401 F.2d 87 (3rd Cir. 1967), the court found that the employee’s suit against the union raised a federal question, and that subject matter jurisdiction was therefore" }, { "docid": "2476086", "title": "", "text": "of employment_” 29 U.S.C. § 159(a) (1988). It has now been well established that a union certified as an exclusive bargaining representative has a correlative duty of fair representation. In Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 910, 17 L.Ed.2d 842 (1967), the seminal case on the statutory duty of fair representation, the Supreme Court reviewed the history of its recognition of such a duty, which began with cases under the Railway Labor Act, 45 U.S.C. § 151 et seq. (1988), alleging racial discrimination by unions, see Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202-04, 65 S.Ct. 226, 232-33, 89 L.Ed. 173 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210, 213, 65 S.Ct. 235, 237, 89 L.Ed. 187 (1944), and was extended shortly thereafter to the NLRA, see Ford Motor Co. v. Huffman, 345 U.S. 330, 337-38, 73 S.Ct. 681, 685-86, 97 L.Ed. 1048 (1953). Jurisdiction over a claim that a union has breached its duty of fair representation is based on 28 U.S.C. § 1337(a) (1988) (covering “any civil action or proceeding arising under any Act of Congress regulating commerce”), see Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 83, 110 S.Ct. 424, 434, 107 L.Ed.2d 388 (1989), whereas an employee’s claim directly against the employer for breach of a collective bargaining agreement after the union failed to process the grievance is filed under section 301(a) of the LMRA, 29 U.S.C. § 185(a) (1988). Ordinarily, an employee files a claim against the union alleging breach of the duty of fair representation together with a claim against the employer alleging breach of the collective bargaining agreement in a “hybrid” section 301/duty of fair representation suit. In the “hybrid” suit, the plaintiff will have to prove that the employer breached the collective bargaining agreement in order to prevail on the breach of duty of fair representation claim against the union, and vice versa. See United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 66-67, 101 S.Ct. 1559, 1565-66, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring" }, { "docid": "4992807", "title": "", "text": "Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 916, 17 L.Ed.2d 842 (1967); DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 165, 103 S.Ct. 2281, 2291, 76 L.Ed.2d 476 (1983) (in order to prevail in hybrid § 301 suits, an employee must establish (1) that the employer breached the collective bargaining agreement and (2) that the union breached its duty of fair representation). Labor unions owe their members a duty of fair representation because they are invested by statute with the power to bargain exclusively on the behalf of their membership; unions thus may not use their power intentionally to disadvantage certain members of the bargaining unit. Steele v. Louisville & Nashville R.R., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). In assessing the duty of fair representation, the union must be accorded a \"wide range of reasonableness\" to enable it to perform effectively, but this discretion is subject to \"good faith and honesty of purpose.\" Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563-64, 96 S.Ct. 1048, 1056, 47 L.Ed.2d 231 (1976) (citations omitted). Plaintiffs allege that the Union breached its duty because it agreed to a deal which discriminated against them and because the union allegedly refused to process grievances. Turning to the first theory of breach, in the landmark case Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), the Supreme Court rejected an argument that a union unfairly represented certain employees after the union negotiated a labor agreement granting some employees seniority credit for time spent in the military prior to coming to work at Ford. As a result of this agreement, plaintiffs were laid off while employees with less years at Ford (but more in the military) remained working. The Huffman plaintiffs argued that like race, pre-employment military service was an illegitimate criterion upon which to base contractual distinctions. The Court refused to narrow union latitude in bargaining, not only because this would undermine union power as the legitimate representative of a bargaining unit, but also because it would mandate federal court oversight" } ]

[ { "docid": "1667346", "title": "", "text": "in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), holding that due process did not permit reasonable doubt instructions that “suggested a higher degree of doubt than is required for acquittal under the reasonable doubt standard.” Id. at 41, 111 S.Ct. 328. It was at least arguable that the Supreme Court made Cage retroactive when it vacated a decision of the Eleventh Circuit holding Cage not retroactive. See Adams v. Evatt, 511 U.S. 1001, 114 S.Ct. 1365, 128 L.Ed.2d 42 (1994) (vacating and remanding for reconsideration in light of Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)). On this prima facie showing, we authorized Nevius’s second federal petition “[w]ithout intimating any view concerning the merits of Nevius’ Cage claim, or any view regarding whether he has in fact met the requirements of 28 U.S.C. § 2244(b).” Nevius II, 105 F.3d at 462. In a separate order, we held that, because 28 U.S.C. § 2244(b)(3) refers to our permitting the district court to consider a second or successive application, our grant of permission to file a second petition authorized the filing of the entire petition, not just the reasonable-doubt-instruction claim that met the requirement of § 2244(b)(2)(A). See Nevius v. McDaniel, 104 F.3d 1120 (1996) (“Nevius III”). The district court, however, had the duty under § 2244(b)(1) and (2) to examine each claim of the second petition and to dismiss the claims that did not meet the requirements of those subsections. See id. at 1121. Shortly after our remand to the district court, Nevius sought to file a supplemental petition for original habeas corpus in the Nevada Supreme Court. The Nevada Supreme Court addressed and rejected Nevius’s claim that the scheduling of his execution three times, with stays granted shortly before the execution date, constituted cruel and unusual punishment in violation of the Eighth Amendment, Nevius v. Warden, Order Denying Rehearing, Nos. 29027, 29028 (Nev. July 17, 1998). II. Nevius’s Current (Second) Habeas Petition. The district court followed our mandate in Nevius II and examined in light of AEDPA each claim" } ]

[ { "docid": "16763833", "title": "", "text": "to section 2244(b)(2)’s substantive requirements; and (2) the state court did not permit him to develop the record fully. We find these arguments unpersuasive for the reasons that follow. Goldblum first argues that our determination that he has made a “prime facie showing” under section 2244, thus allowing him to file his second petition, somehow required that the district court hold an evidentiary hearing in making its threshold determination under 28 U.S.C. § 2244(b)(4). Appellant’s br. at 17. More specifically, he states, This Court, based on specific factual allegations, permitted [Goldblum] to file a successor habeas petition under 28 U.S.C. § 2244(b)(3)(A)(prima facie case that petitioner had either cause and prejudice to excuse failure to raise issues earlier or a demonstration of actual innocence). The district court nevertheless denied Goldblum an evidentiary hearing on these fully supported allegations and, on this incomplete record, ruled that Goldblum had ‘abused’ the writ. to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before the merits of the motion can be considered. Id. at 15. In reaching this conclusion, Goldblum misunderstands our gatekeeping role in authorizing the filing of second or successive petitions under the AEDPA. Though it well may be that we have made neither the meaning of “prima facie showing” under section 2244(b)(3)(A) nor how that meaning impacts the district court’s section 2244 obligations clear, many other courts of appeals have. Courts often have cited Bennett v. United States, 119 F.3d 468 (7th Cir.1997), as an instructive opinion in this field. In Bennett, the Court of Appeals for the Seventh Circuit held: By ‘prima facie showing’ we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court. All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is" }, { "docid": "10810505", "title": "", "text": "no Supreme Court case “squarely addressing] the issue” whether a judge is barred from consideration of such victim impact evidence, it cannot be said that the Arizona Supreme Court unreasonably applied clearly establishéd federal law when it denied Gulbrandson’s Eighth Amendment claim. Van Patten, 552 U.S. at 125-26, 128 S.Ct. 743; see also Knowles, 556 U.S. at 122, 129 S.Ct. 1411. V Gulbrandson also asks this court for authorization to file a second or successive petition for a writ of habeas corpus in the District of Arizona. See 28 U.S.C. § 2244(b)(3). We deny his request. A A petitioner seeking to bring a second or successive habeas corpus application “must make a prima facie showing that his application satisfies the requirements of § 2244(b).” Pizzuto v. Blades, 673 F.3d 1003, 1007 (9th Cir.2012); 28 U.S.C. § 2244(b)(3)(C). Section 2244(b)(1) requires dismissal of claims “presented in a prior application.” For claims not previously presented, section § 2244(b)’s “demanding standard,” Bible v. Schriro, 651 F.3d 1060, 1063 (9th Cir.2011) (per cu-riam), requires dismissal unless (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). Gulbrandson’s application does not rest on a “new rule of constitutional law,” so § 2244(b)(2)(A) is not applicable. Thus, to the extent Gul-brandson’s proposed second or successive habeas petition raises claims not previously presented, he “must make a prima facie showing of due diligence and actual innocence” as required by § 2244(b)(2)(B). Morales v. Ornoski, 439 F.3d 529, 531 (9th Cir.2006). B Gulbrandson seeks to raise four claims based on a February 2009 report authored by" }, { "docid": "23503334", "title": "", "text": "If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition, we shall grant the application. Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir.1997); see Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir.2001) (quoting Bennett). We have carefully reviewed Applicant’s motion and the documents appended as exhibits thereto and the Response filed by the State. We find that Applicant has made a prima facie showing that: (1) the claims to be presented in the proposed successive habeas corpus application have not previously been presented in any prior application to this Court; (2) the claim to be presented in the proposed successive habeas corpus application relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, see Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); and (3) applicant should be categorized as “mentally retarded” as defined in these cases. Accordingly, we authorize Applicant to file a successive habeas corpus petition with the district court. This grant is, however, “ ‘tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.’ The district court then is the second ‘gate’ through which the petitioner must pass before the merits of his or her motion are heard.” Reyes-Requena, 243 F.3d at 899 (quoting Bennett, 119 F.3d at 470); see also 28 U.S.C. § 2244(b)(4). The district court “must conduct a ‘thorough’ review to determine if the motion ‘conclusively’ demonstrates that it does not meet AEDPA’s second or successive motion requirements.” Reyes-Requena, 243 F.3d at 899 (citing United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir.2000)). Applicant has also moved this Court for a stay" }, { "docid": "22674136", "title": "", "text": "accommodates this view, as it states that successive § 2255 motions “must be certified as provided in section 2244.” See United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir.2000) (“Section 2255, by its terms, expressly incorporates the procedures for certification of the filing of a second or successive motion set forth in section 2244.”); see also supra note 9. Further, “[i]n the absence of ... specification, it is logical to assume that Congress intended to refer to all of the subsections of § 2244 dealing with the authorization of second and successive motions.” Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997); see also 2 James C. Liebman & Randy HeRtz, Federal Habeas Corpus Practice and Procedure § 41.7d, at 1609 (3d ed. 1998) (“[Section 2255] appears to adopt the same procedure for section 2255 cases as applies to successive state-prisoner habeas corpus petitions [under § 2244].” (emphasis omitted)). Although the legislative history is silent as to the extent of § 2244 incorporation into § 2255, we also can find no intent to treat federal and state prisoners differently. See Bennett, 119 F.3d at 469; cf. United States v. Burch, 202 F.3d 1274, 1278 (10th Cir.2000) (stating that “there is simply no indication that Congress intended to treat state and federal habeas petitioners differently” and thus interpreting the term “final” in § 2255’s limitations provision to track the meaning of the term “final” in the analogous § 2254 limitations provision); Kapral v. United States, 166 F.3d 565, 575 (3d Cir.1999) (same). Thus, the final paragraph of § 2255 incorporates § 2244(b)(3)(C), which provides that a petitioner must make a “prima facie showing” that his or her motion satisfies § 2255’s requirements for second or successive motions in order to obtain permis sion from a court of appeals to file such a motion. “By ‘prima facie showing’ we understand ... simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Bennett, 119 F.3d at 469. Therefore, if from the application and its supporting documents, “it appears reasonably likely that the application satisfies the" }, { "docid": "16858079", "title": "", "text": "§ 2244(b) for gatekeeper purposes. 28 U.S.C. § 2244(b)(3)(C). Now that he is before this Court, he must actually show that each claim in his pending petition satisfies the statutory requirements. Tyler v. Cain, 533 U.S. 656, 661, n. 3, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). While the gatekeeper authorization allowed Petitioner to file any and all claims in a successive petition upon a prima facie showing that any one claim satisfies the requirements of 28 U.S.C. § 2244(b), Nevius v. McDaniel, 104 F.3d 1120 (9th Cir.1996), Petitioner must now satisfy the requirements of 28 U.S.C. § 2244(b) as to each claim before that claim can be considered by this Court. 1. Claims Presented in a Prior Application are to be Dismissed First, any claim “presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). The only exception that has been recognized by the Ninth Circuit to the requirement of dismissal for previously presented clams is in “extremely narrow circumstances” where the claim presented in the previous petition was held to be premature. Babbitt v. Woodford, 177 F.3d 744, 745(9th Cir.1999) (citing Martinez-Villareal v. Stewart, 118 F.3d 628, 630 (9th Cir.1997), aff'd, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998)). A claim is not newly presented merely because the petitioner offers new factual bases in support of a legal claim that has already been raised. The Ninth Circuit held that it would not “consider new factual grounds in support of the same legal claim” that was previously presented, reasoning as follows: A “ground is successive if the basic thrust or gravamen of the legal claim is the same, regardless of whether the basic claim is supported by new and different legal arguments.... Identical grounds may often be proved by different factual allegations.... ” Id. (quoting United States v. Allen, 157 F.3d 661, 664(9th Cir.1998)). 2. New Claims in a Successive Application Must Meet a Rigid Standard under AEDPA Second, even if the claim has not been previously presented in a federal" }, { "docid": "18256372", "title": "", "text": "§ 2253(c) when challenging an administrative decision regarding the execution of his sentence. White v. Lambert, 370 F.3d 1002, 1010 (9th Cir.2004). STANDARD OF REVIEW This court reviews de novo a district court’s denial of a habeas petition. King v. Lamarque, 464 F.3d 963, 965 (9th Cir.2006). A district court’s determination that petitioner failed to establish eligibility under § 2244 to file a successive petition is reviewed de novo. United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir.2000); Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir.1998) (en banc). A district court’s refusal to review successive claims is reviewed for abuse of discretion. Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.1996). DISCUSSION “Generally, a new petition is ‘second or successive’ if it raises claims that were or could have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir.2001). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) implemented a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2). Under that provision, a successive application is permissible only if it rests on a new rule of constitutional law, facts that were previously unavailable, or facts that would be sufficient to show constitutional error in the petitioner’s conviction. 28 U.S.C. § 2244(b)(2). Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court. 28 U.S.C. § 2244(b)(3). When Woods filed this petition in April 2004, his previous habeas petition was still pending before the district court. Rather than treating the new petition as a motion to amend, the district court dismissed it as successive for failure to comply with § 2244(b). Woods argues that this was in error. He urges this court to follow the Second Circuit by holding that, where a new pro se petition is filed before the adjudication of a prior petition is complete, the new petition should be construed as a motion to" }, { "docid": "8435037", "title": "", "text": "state’s interest in finality of judgment over a prisoner’s interest in additional review. See Calderon v. Thompson, 523 U.S. 538, 557, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). “This purpose suggests that the elements of § 2244(b)(2)(B) must be resolved prior to, and independently of, consideration of the similar elements of a Brady claim.” Johnson v. Dretke, 442 F.3d 901, 909 (5th Cir.2006). All of these considerations are equally applicable at each of § 2244’s gates. See Goldblum v. Klem, 510 F.3d 204, 217 (3d Cir.2007) (“We have made it clear that unless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.”) (emphasis added) (citation and quote omitted). Accordingly, we must first determine whether Case satisfies the requirements of § 2244(b)(2)(B), and our review owes no deference to the rulings of the state courts. A. First Gate — Court of Appeals Reviewing the statutory scheme as a whole is helpful, even though Case already received authorization from this court to proceed in the district court. As described above, § 2244 requires an applicant to pass through two gates. The first gate requires the petitioner make a prima facie showing at the circuit level that no reasonable factfinder would have found him guilty but for constitutional error at trial. The second gate requires the petitioner to back up the prima facie showing at the district court level with actual evidence to show he can meet this standard. In particular, § 2244(b)(2) provides: A claim ... not presented in a prior application shall be dismissed unless (B)(i) the factual predicate for the claim could not have been discovered previous- Iy through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). A three-judge panel of this court concluded Case satisfied his burden" }, { "docid": "10160941", "title": "", "text": "were \"part of one criminal episode.\" United States v. McElyea, 158 F.3d 1016, 1021 (9th Cir. 1998). For simplicity’s sake, we will refer to the two armed robbery convictions, the robbery conviction, and the conviction for using a firearm in the commission of a felony as the \"Florida robbery convictions.” . The Government concedes- expressly that the conviction for possession was not a conviction for a “serious drug offense,” . The question has cropped up somewhat frequently because \"[njothing in the law requires a [court] to specify which clause of [the statute]—residual or elements clause—it relied upon in imposing a sentence.” In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016). Thus, at many pre-Johnson II sentenc-ings, the court did not specify under which clause it found the ACCA predicate offenses to qualify. . Though we authorized Defendant to file a second or successive motion, that authorization required only a prima facie demonstration that Defendant’s claim \"relies on” Johnson II, see 28 U.S.C. § 2244(b)(3)(C); our authorization did not compel the district court to find that Defendant’s claim actually relies on Johnson II, nor does it bind us now. See Bible v. Schriro, 651 F.3d 1060, 1064 n.l (9th Cir. 2011) (per curiam) (\"A prima facie showing is a sufficient showing of possible merit to warrant a fuller exploration by the district court, and we will grant an application for [a second or successive] petition if it appears reasonably likely that the application satisfies the stringent requirements for the filing of a second or successive petition.” (internal quotation marks omitted)); see also United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000) (per curiam) (\"[A] district court must conduct a thorough review of all allegations and evidence presented by the prisoner to determine whether the motion meets the statutory requirements for the filing of a second or successive motion.”). . The Fourth Circuit recently came to a similar conclusion, holding that, \"when [a defendant’s] sentence may have been predicated- on application of the now-void residual clause and, therefore, may be an unlawful sentence under the holding in Johnson II," }, { "docid": "22674139", "title": "", "text": "United States, 119 F.3d 468, 470 (7th Cir.1997). This is so because the court of appeals utilizes a “prima facie showing” standard to assess whether to grant a petitioner permission to file a second or successive § 2255 motion (the first “gate”). See supra Part II.A. 1 (holding that the prima facie standard of § 2244(b)(3)(C) has been incorporated into § 2255 for successive motions); see also Bennett, 119 F.3d at 469 (explaining that a court of appeals makes rulings on such applications under tight deadlines and with limited information). Therefore, the “grant [by a court of appeals to file a second or successive motion] is, ... it is important to note, tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.” Id. at 470. The district court then is the second “gate” through which the petitioner must pass before the merits of his or her motion are heard. Agreeing with this framework, the Ninth Circuit followed suit and held that “section 2255 incorporates 28 U.S.C. § 2244(b)(4).” United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir.2000) (concluding that the petitioner “must make more than another prima facie showing” before the district court). The court further advised that the district court must conduct a “thorough” review to determine if the motion “conclusively” demonstrates that it does not meet AEDPA’s second or successive motion requirements. See id. at 1165. Therefore, we find that 28 U.S.C. § 2244(b)(4) has also been incorporated into 28 U.S.C. § 2255. As such, the previous panel’s grant of permission to Reyes to file a second § 2255 motion did not preclude the Southern District from conducting its own threshold inquiry; in fact, the Southern District was obligated to do so. The Southern District thus acted properly in analyzing whether Reyes had satisfied the requirements of successive motions under § 2255. We next examine whether the Southern District’s conclusion that" }, { "docid": "22674161", "title": "", "text": "v. United States, 108 F.3d 119, 119 n. * (7th Cir.1997) (finding § 2244(b)(3)(D) applicable to § 2255 successive motions). One circuit implicitly assumed incorporation of § 2244(b)(3)(D) without discussion by simply noting \"the 30-day time limitation established by 28 U.S.C. A. § 2244(b)(3)(D) for decisions on requests for permission to institute a second or successive § 2255 proceeding.” In re Vial, 115 F.3d 1192, 1194 n. 3 (4th Cir.1997) (en banc). . The Southern District stated in its Order that \"the Fifth Circuit found that petitioner had made a prima facie showing that the application satisfies the requirements of §§ 2244 and 2255.” (emphasis added) (the \"prima facie showing” language is from § 2244(b)(3)(C)). . \"A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4) (2000). . The Southern District made this determination notwithstanding the fact that a previous panel of this court had already granted Reyes permission to file his second § 2255 motion. . See supra note 8. . The court thus found that the difference in wording between § 2255 (“certified ... to contain”) and § 2244(b)(3)(C) (\"prima facie showing”) to be \"immaterial.” See Bennett, 119 F.3d at 469. . See supra note 11. . In concluding that the Southern District was the appropriate venue, the Eastern District relied on the grant of permission by a previous panel of this court for Reyes to file a second § 2255 motion and on dicta in United States v. Rocha, 109 F.3d 225, 229 (5th Cir.1997). See supra Part II. We do not agree with either basis for the Eastern District's conclusion. We first note that the previous grant was not dispositive; as discussed above, the grant was based on only a prima facie showing, and the Southern District was obligated to conduct its own threshold inquiry before reaching the merits of the motion. Second, in Rocha the petitioner was appealing the denial of his first §" }, { "docid": "2904386", "title": "", "text": "application of the new second or successive petition provisions, the prisoners’ petitions straddled the AEDPA’s enactment. See Stewart v. Martinez-Villareal, 523 U.S. 637, 640-41, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998); Calderon v. Thompson, 523 U.S. 538, 544-47, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998); Felker v. Turpin, 518 U.S. 651, 655-57, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). In Felker, the Supreme Court decided that the restrictions on second and successive petitions imposed by the AEDPA do not amount to a suspension of the writ of habeas corpus. Felker, 518 U.S. at 664, 116 S.Ct. 2333. In Martinez-Villareal, the Court, while concluding that the AEDPA provisions did not apply because the instant motion was not a \"second or successive\" petition, pointed out that \"[I]f respondent's current request for relief is a 'second or successive’ application, then it plainly should have been dismissed [under the amended provisions of § 2244(b) ].” Martinez-Villareal, 523 U.S. at 642, 118 S.Ct. 1618. Finally, in Thompson, the Court concluded that our decision to recall the mandate was not based on a second or successive application, but stated that \"had the court [of appeals] considered claims or evidence presented in Thompson's later filings, its action would have been based on a successive application, and so would be subject to § 2244(b).” Thompson, 523 U.S. at 554, 118 S.Ct. 1489. . Section 2244(b)(4) provides that \"[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4). . We point out that in the context of a section 2255 motion, the phrase \"the requirements of this section” in section 2244(b)(4) refers to the requirements set out in section 2255, not section 2244(b)(2). . Villa-Gonzalez does not contend that he is entitled to file his second section 2255 motion because of a new rule of constitutional law. See 28 U.S.C. § 2255, second subdivision (2). Thus, we consider only whether he has satisfied section 2255, second subdivision (1)." }, { "docid": "22674160", "title": "", "text": "alternative, that the outright dismissal of his petition in the Eastern District was in error (i.e., that the case should be transferred back to the Southern District). . State prisoners file their federal habeas corpus petitions under 28 U.S.C. § 2254, while federal prisoners file collateral review motions under § 2255. Section 2244 primarily deals with the requirements for § 2254 petitions. When AEDPA amended the various collateral review and habeas corpus statutes, it did not include the details applicable to successive § 2255 motions; rather, it simply referred to the § 2254 procedures detailed in § 2244. . While few courts have considered this issue, two of our sister circuits have discussed the incorporation of various § 2244 provisions into § 2255. See infra Part II.A.l & 2; see also Triestman v. United States, 124 F.3d 361, 367 (2d Cir.1997) (holding that § 2244(b)(3)(D) and (E) apply to § 2255 successive motions); Alexander v. United States, 121 F.3d 312, 314 (7th Cir.1997) (stating that § 2244(b)(1) is applicable to § 2255 successive motions); Hope v. United States, 108 F.3d 119, 119 n. * (7th Cir.1997) (finding § 2244(b)(3)(D) applicable to § 2255 successive motions). One circuit implicitly assumed incorporation of § 2244(b)(3)(D) without discussion by simply noting \"the 30-day time limitation established by 28 U.S.C. A. § 2244(b)(3)(D) for decisions on requests for permission to institute a second or successive § 2255 proceeding.” In re Vial, 115 F.3d 1192, 1194 n. 3 (4th Cir.1997) (en banc). . The Southern District stated in its Order that \"the Fifth Circuit found that petitioner had made a prima facie showing that the application satisfies the requirements of §§ 2244 and 2255.” (emphasis added) (the \"prima facie showing” language is from § 2244(b)(3)(C)). . \"A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4) (2000). . The Southern District made this determination notwithstanding the fact that a previous panel of this court" }, { "docid": "18039592", "title": "", "text": "U.S. 656, 661, 121 S.Ct. 2478, 2481-82, 150 L.Ed.2d 632 (2001) (“AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications.”). “If second and successive motions are not ‘greatly restricted],’ there will be no end to collateral attacks on convictions and sentences, and there will be no finality of judgment.” Gilbert, 640 F.3d at 1311 (quoting Tyler, 533 U.S. at 661, 121 S.Ct. at 2481). One tool AEDPA uses to restrict successive petitions is the requirement that petitioners, like Hill, obtain permission from this Court before they can file a successive § 2254 petition in a district court. Specifically, § 2244(b)(3)(A) requires a state prisoner seeking to file a second or successive habeas petition to move this Court “for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). B. 28 U.S.C. § 2244(b)(1) In ruling on an application to file a successive petition, this Court must make a threshold determination of whether the claim to be presented in the second or successive petition was presented in the first petition. We do that because § 2244(b)(1), added by AEDPA, provides that “[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis added). It provides no exceptions. As held by the Supreme Court, “[ujnder § 2244(b), the first step of analysis is to determine whether ‘a claim presented in a second or successive habeas corpus application’ was also ‘presented in a prior application.’ If so, the claim must' be dismissed; if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions.” Gonzalez, 545 U.S. at 530, 125 S.Ct. at 2647 (emphasis added); see also Tyler, 533 U.S. at 661-62, 121 S.Ct. at 2481-82; In re Lambrix, 624 F.3d 1355, 1362 (11th Cir.2010) (“Because Claims 7, 8, and 10 were previously presented by Lambrix, they cannot be the basis of a claim for leave to file a successive habeas petition.” (citing 28 U.S.C." }, { "docid": "9847873", "title": "", "text": "MURPHY, Circuit Judge. Loyd Winford LaFevers appeals the district court’s dismissal of his second 28 U.S.C. § 2254 habeas petition. The district court dismissed the petition after concluding that it failed to satisfy the requirements of 28 U.S.C. § 2244(b)(2)(B)(ii). Section 2244(b)(2)(B)(ii) requires that a claim in a second or successive § 2254 habeas application that was not presented in a prior petition shall be dismissed unless the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. A panel of this court with one judge dissenting authorized LaFevers to file the second habeas petition. See 28 U.S.C. § 2244(b)(3)(A). That authorization, however, merely represented this court’s determination that LaFevers had made a prima facie showing that he could meet the requirements of § 2244(b). See id. § 2244(b)(3)(C) (“The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.”). Upon the filing of LaFevers’ second § 2254 petition, the district court was obligated to determine whether the petition did, in fact, satisfy the requirements of § 2244(b). See id. § 2244(b)(4) (“A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.”). Pursuant to this court’s grant of permission, LaFevers filed his second § 2254 petition on September 15, 2000. In his second petition, LaFevers raised the following two claims: (1) Oklahoma knowingly adduced at trial false evidence concerning blood stains found on a pair of jeans (“Exhibit 83”) in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) trial counsel was" }, { "docid": "16858078", "title": "", "text": "must apply AEDPA to Cooper’s new petition. Cooper, 274 F.3d at 1272. Petitioner’s third federal habeas corpus petition in this Court was filed on April 1, 2004, long after the effective date of AED-PA, April 24, 1996. As such, the provisions of AEDPA govern this latest habeas petition. See Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001) (“Because [petitioner] filed his federal habeas petition after the enactment of [AEDPA], the provisions of that law govern the scope of our review.”); Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (AEDPA applies to all habeas petitions filed after April 24, 1996). A. AEDPA’s Standard for Habeas Relief The Ninth Circuit’s authorization which enabled Petitioner to file a successive ha-beas petition pursuant to 28 U.S.C. § 2244(b) with this Court does not relieve Petitioner of his burden of demonstrating compliance with those requirements before this Court. Petitioner’s burden in seeking authorization from the Ninth Circuit was merely to make a prima facie showing of compliance with § 2244(b) for gatekeeper purposes. 28 U.S.C. § 2244(b)(3)(C). Now that he is before this Court, he must actually show that each claim in his pending petition satisfies the statutory requirements. Tyler v. Cain, 533 U.S. 656, 661, n. 3, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). While the gatekeeper authorization allowed Petitioner to file any and all claims in a successive petition upon a prima facie showing that any one claim satisfies the requirements of 28 U.S.C. § 2244(b), Nevius v. McDaniel, 104 F.3d 1120 (9th Cir.1996), Petitioner must now satisfy the requirements of 28 U.S.C. § 2244(b) as to each claim before that claim can be considered by this Court. 1. Claims Presented in a Prior Application are to be Dismissed First, any claim “presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). The only exception that has been recognized by the Ninth Circuit to the requirement of dismissal for previously presented clams is in “extremely" }, { "docid": "18039605", "title": "", "text": "instructed us that “[i]f the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases.” Tyler, 533 U.S. at 661, 121 S.Ct. at 2482 (citing 28 U.S.C. § 2244(b)(1)). “In all cases” means all cases. Section 2244(b)(1) bars the petition Hill requests authorization to file. C. 28 U.S.C. § 2244(b)(2) • Alternatively, even if we did view Hill’s present claim as a new one that he did not present in his prior federal petition, we are nevertheless required to deny his Application to file a successive petition because he has not satisfied the requirements of 28 U.S.C. § 2244(b)(2). Under AEDPA, this Court may now grant authorization to file a successive federal habeas petition only if the applicant satisfies one of the two narrow statutory exceptions in § 2244(b)(2), stated as: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of. the underlying offense. 28 U.S.C. § 2244(b)(2) (emphasis added). This Court “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection [§ 2244(b)].” Id. § 2244(b)(3)(C). A prima facie showing is “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” In re Turner, 637 F.3d 1200, 1204 (11th Cir. 2011) (internal quotation marks omitted). Hill’s Application does not meet either of the two narrow exceptions enunciated in § 244(b)(2). As to the first exception, Hill concedes that he does not rely on a new rule" }, { "docid": "8435042", "title": "", "text": "it is important to note, tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before the merits of the motion can be considered. Id. at 470 (emphasis added). Thus, gate one is at the circuit court level where a preliminary assessment occurs based on the application; gate two is at the district court level where a record is made and a final assessment occurs. At least eight other circuit courts have adopted this interpretation. See Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir.2007); In re Lott, 366 F.3d 431, 432-33 (6th Cir.2004); In re Williams, 330 F.3d 277, 281—82 (4th Cir.2003); In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir.2003); Bell v. United States, 296 F.3d 127, 128 (2d Cir.2002); Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir.2001); Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir.1998); Rodriguez v. Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir.1998), abrogated on other grounds by Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). We have referenced this standard in dicta, Ochoa, 485 F.3d at 542 n. 4, but never formally adopted it ourselves. We join the other circuits in adopting Bennett’s understanding of what is required to make a “prima facie showing.” This adoption is important because it clarifies our position with respect to the authorization we previously gave to Case, allowing him to file his successive petition in the district court. As § 2244(b)(3) states: only after the appropriate court of appeals has granted an order authorizing the district court to consider the application will the district court be able to proceed. If we had denied Case’s request for authorization, then the matter would have ended. See id. § 2244(b)(3)(E) (stating that the denial of authorization is not subject to a petition" }, { "docid": "22929726", "title": "", "text": "the functional equivalents of a new, second or successive petition. See Thompson v. Calderon, 151 F.3d 918 (9th Cir.1998) (en banc) (construing Rule 60(b) motion that asserted new claim for relief as successive habeas petition); 28 U.S.C. § 2244(b). Cooper was not denied the opportunity to litigate a claim that had been properly presented. Ill The district court correctly recognized that Cooper’s petition was “second or successive” under Section 2244(b). Once it did so, however, it lacked jurisdiction to consider the merits of his petition. See United States v. Allen, 157 F.3d 661, 664 (9th Cir.1998); 28 U.S.C. § 2244(b)(4). “When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.” Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir.1999). We therefore vacate the district court’s orders dismissing the petition and denying a certificate of appealability. However, we construe Cooper’s request for a certificate of appealability as a request for authorization to file a second or successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A). Cf. Libby, 177 F.3d at 46 (“no useful purpose would be served by forcing the petitioner to retreat to square one and wend his way anew through the jurisdictional maze”). Under AEDPA, this court may grant permission to file a second or successive petition only if “the application makes a prima facie showing that the application satisfies the requirements of [Section 2244(b) ].” 28 U.S.C. § 2244(b)(3)(C). Accordingly, because Cooper’s successive petition raises a new claim, we must deny him authorization unless the claim falls within a recognized exception: (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless— (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii)" }, { "docid": "2904381", "title": "", "text": "the application of the new provisions to his most recent motion retroactive. See Landgraf, 511 U.S. at 269-70 n. 24, 114 S.Ct. 1483. We therefore reject Villa-Gonzalez’s claim that the second or successive petition provisions of the AEDPA act retrospectively in this case, and accordingly conclude that the district court properly applied the amended provisions to Vüla-Gonzalez’s motion under the general rule that “a court is to apply the law in effect at the time it renders its decision.” Land-graf, 511 U.S. at 264, 114 S.Ct. 1483 (quot ing Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)). B. Application of 28 U.S.C. § 2244(b)(4) in section 2255 px-oceedings The district court determined that 28 U.S.C. § 2244(b)(4) authorized it to reexamine our grant of permission to Villa-Gonzalez to file his second section 2255 motion. Villa-Gonzalez contends that our grant of permission forecloses the district court from finding his motion does not meet the statutory requirements. Villa-Gonzalez’s contention lacks merit. Section 2255, by its terms, expressly incorporates the procedures for certification of the filing of a second or successive motion set forth in section 2244. See 28 U.S.C. § 2255 (“A second or successive motion must be certified as provided in section 2244....”). The Seventh Circuit has stated that the court of appeals’ grant of permission to file a second section 2255 motion is “tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.” Bennett v. United States, 119 F.3d 468, 470 (7th Cir.1997). We agree, and conclude that the plain language of section 2255 incorporates 28 U.S.C. § 2244(b)(4) as part of the certification procedures of section 2244. As incorporated through section 2255, section 2244(b)(4) requires that a prisoner make a showing to the district court that his or her second or successive motion contains: “(1) newly discovered evidence that, if proven and viewed in light of" }, { "docid": "16763827", "title": "", "text": "motion authorizing the district court to consider the application “only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(B), (C). The court of appeals should make its determination no later than 30 days after the filing of the motion, id. at § 2244(b)(3)(D), and the decision “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Id. at § 2244(b)(3)(E). Section 2244(b)(2) requires that the court of appeals deny a motion to file a second or successive habeas petition unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evi dence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Id. at § 2244(b)(2). If the court of appeals determines that the procedural requirements for a second or successive petition have been met, the applicant then is permitted to file the second or successive application with the district court. But section 2244(b)(4) makes it clear that before a district court may consider the merits of the application, the petition must satisfy the substantive requirements for it. As we put it in Minarik, 166 F.3d at 600, “[t]hese substantive gatekeeping provisions were intended to reduce the universe of cases in which a habeas petition may go forward on a second or successive petition.” In this regard, a district court “shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of [section 2244(b)(2) ].” 28 U.S.C. §" } ]

[ { "docid": "11227564", "title": "", "text": "the complaint was filed and is not affected by a subsequent change of parties. Exxon Corp. v. Federal Trade Comm’n, 588 F.2d 895, 899 (3d Cir.1978). Sidco has submitted no evidence which could support a finding that Yung resides in this state. Therefore, the issue before the court is whether, under section 1391(b)(2), “a substantial part of the events or omissions giving rise to the claim” occurred in the District of Oregon. This language was added to section 1391(b) as part of the Judicial Improvements Act of 1990, Pub.L. 101-650, superseding the former requirement that the action be brought in the district where “the claim arose.” The legislative history regarding this change makes it clear that the new language was intended to avoid some of the difficulties that had been encountered by courts in trying to determine the district in which the claim arose. Siegel, Changes in Federal Jurisdiction and Practice Under the New (Dec. 1, 1990) Judicial Improvements Act, 133 F.R.D. 61, 70-71 (1991). The new language contemplates that there may be more than one district in which a substantial part of the events giving rise to the claim occurred, and that venue would be proper in each such district under subsection (2). Id. at 71. Defendants are mistaken in their contention that the court must determine the single district where a substantial part of the events occurred. No reported cases have interpreted the language in section 1391(b) since it was enacted in December, 1990. It is clear, however, that a substantial part of the events giving rise to the claim occurred in the State of Nevada, where the Lake Tahoe Horizon Casino/Resort is located and operated, and where the advertising material and direct mail brochures originated. Thus, venue would be proper in the District of Nevada. Sidco argues that venue is also proper in the District of Oregon because any confusion and diminution in the value of its service mark is likely to occur in the State of Oregon, where the Horizon Motor Inn is located, where Sidco does business, and where Wimar’s brochures were received by almost" } ]

[ { "docid": "407055", "title": "", "text": "company, MHE, to program the prototype web site that SKY had developed and designed. Id, ¶ 14. According to plaintiff, defendants used this alternate site for the launch of Chemfinet at the INFORMEX conference. Id, ¶ 15. Plaintiff contends that defendants decided to retain MHE to develop this alternative site in January 2000. Id, ¶ 16. Plaintiff also alleges that neither Midwest nor Chemfinet have paid SKY its fees, which total $202,191.00. Id, ¶ 17. Chemfinet has also failed to issue stock to SKY, and Midwest has failed to cause Chemfinet to issue such stock. Id Lastly, the alternate web site, which plaintiff alleges was based on technology owned by, and stolen from, SKY, is currently published on the internet. Id, ¶ 18. On May 16, 2000, plaintiff commenced this action in the Court of Common Pleas for Franklin County, Ohio. On June 26, 2000, defendants removed the action to this Court. II. Venue Defendants moves to dismiss this action for improper venue. Under the general venue statute, 28 U.S.C. § 1391(a)(2), a plaintiff may file a diversity action “in any forum where a substantial part of the events or omissions giving rise to the claim arose; this includes any forum with a substantial connection with the plaintiffs claim.” First of Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998). According to plaintiff, much of the work on the site development occurred in Ohio. Tomaszewski Affidavit attached to Plaintiffs Memorandum contra Defendants’ Motion to Dismiss or Transfer and for More Definite Statement, ¶ 10. Under these circumstances, and in light of the fact that the current venue statute was intended to broaden the former law governing venue in diversity cases, First of Michigan Corp., 141 F.3d at 263, this Court concludes that venue in this district is proper and that defendants’ motion for dismissal for improper venue is without merit. Defendants also ask, in the alternative, that the Court transfer venue under 28 U.S.C. § 1404(a) to the Western District of Missouri because that district is a more convenient forum. Even in cases where venue is proper, a court" }, { "docid": "23141535", "title": "", "text": "determination of appropriate venue. See Onderik, 897 F.2d at 206. The district court reasoned that the only event triggering First of Michigan and Sobol’s lawsuit seeking to enjoin the Bramlets’ arbitration claim was the filing of the arbitration claim in Florida, and that the plaintiffs’ case was not based on First of Michigan and Sobol’s handling of the Bramlets’ investments. The district court stated that “[djespite the fact that the Bramlets purchased the disputed investments through a Michigan broker, the case at bar would not exist had the Bramlets not instigated the arbitration in Florida.” This analysis indicates that the district court based its determination that venue was improper on a single occurrence which directly gave rise to the plaintiffs’ action, rather than considering whether the forum the plaintiffs chose had a substantial connection to their claim. See Setco Enterprises, 19 F.3d at 1280-81. An application of the amended § 1391(a)(2), which allows plaintiffs to file a diversity case wherever a substantial part of the events giving rise to their claim occurred, would have allowed First of Michigan and Sobol’s claim to proceed in the district court for the Eastern District of Michigan. Most of the transactions relating to the Bramlets’ investments took place in Michigan or resulted from contact the Bramlets had with Sobol, who at all times conducted business in Michigan. We have held in similar circumstances that venue is proper where the underlying transactions and investments took place and is not limited to the forum where the defendants filed a request for arbitration. See Securities Service Network, Inc. v. Cromwell, 62 F.3d 1418, 1995 WL 456374 (6th Cir. August 1, 1995)(affirming district court’s finding of proper venue based on place where underlying transactions 'and investments took place rather than location of arbitration request filing). Under § 1391(a)(2), we reiterate that the appropriate forum for a case is any forum in which a substantial part of the events or omissions giving rise to the claim occurred. With this standard in mind, we conclude that the district court erred in dismissing the plaintiffs’ case based on an outdated interpretation" }, { "docid": "15417642", "title": "", "text": "may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). When a defendant raises a venue challenge, the plaintiff has the burden of proving that venue is proper in the forum state. Saferstein v. Paul, Mardinly, Durham, James, Flandreau & Rodger, P.C., 927 F.Supp. 731, 735 (S.D.N.Y.1996). In addition, where the plaintiff alleges multiple claims, the plaintiff must show that venue is proper with respect to all claims. Id. at 736. Steel-case asserts that the basis for venue is § 1391(a)(2) because a substantial part of the acts or omissions giving rise the claims occurred in this district. The Sixth Circuit addressed the “substantial connection” requirement in § 1391(a)(2) in First of Michigan Corp. v. Bramlet, 141 F.3d 260 (6th Cir.1998). The court stated that the purpose of the 1990 amendment to § 1391(a)(2) was to replace a standard which provided for venue only in the district in which the claim arose with a standard allowing venue in any district having a substantial connection to the claim. The court explained, [t]he fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A, too. Indeed, district A should not be disqualified even it is shown that the activities in district B were more substantial, or even the most substantial .... If the selected district’s contacts are “substantial,” it should make no difference that another’s are more so, or the most so. Id. at 263 (quoting commentary to 28 U.S.C. § 1391). Thus, venue is proper in" }, { "docid": "21248937", "title": "", "text": "inferences in favor of the plaintiff, and the facts must be viewed as the plaintiff most strongly can plead them. Three M Enter., Inc., v. Texas D.A.R. Enter., Inc., 368 F.Supp.2d 450, 454 (D.Md.2005). The general venue statute, 28 U.S.C. § 1391, applies in this case to all claims except the first claim for copyright infringement which is controlled by 28 U.S.C. § 1400(a). DISCUSSION Venue The Court will first address defendants’ motion to dismiss under Fed.R.Civ.P. 12(b)(3) for improper venue in this district. Plaintiff asserts that venue is proper under section 1391(b)(2) and (3) for all of its claims except the first. For venue to be proper in this district under subsection (b)(2), this district must be one “in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). Defendants contend that plaintiffs have failed to allege that a substantial part of the events or omissions giving rise to their claims occurred in this district, and that the facts do not support such a finding. Plaintiffs contend that they have met their burden by alleging that defendants sell Roaring Lion to vari ous eating and drinking establishments in this district, and actively encourage and further the unlawful passing off of Roaring Lion as Red Bull in this district. Substantial activities may occur in other districts without disqualifying this district as a proper venue, so long as “substantial” activities occurred in this district also. Hardee’s Food Sys. Inc., v. Beardmore, 169 F.R.D. 311, 316 (E.D.N.C.1996). Indeed, even if more substantial or the most substantial activities took place elsewhere, this district would not be disqualified. Id. Plaintiffs allege that their claims “arise from Defendants’ acts or omissions in the United States and in this District” and that defendants have “purposefully directed their activities to residents in the United States and in this District.” (Complaint ¶ 10) Therefore, there are apparently activities occurring in both this district and other parts of the United States which underlie these claims. It is true that plaintiffs fail to allege that a “substantial part” of the events" }, { "docid": "407056", "title": "", "text": "file a diversity action “in any forum where a substantial part of the events or omissions giving rise to the claim arose; this includes any forum with a substantial connection with the plaintiffs claim.” First of Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998). According to plaintiff, much of the work on the site development occurred in Ohio. Tomaszewski Affidavit attached to Plaintiffs Memorandum contra Defendants’ Motion to Dismiss or Transfer and for More Definite Statement, ¶ 10. Under these circumstances, and in light of the fact that the current venue statute was intended to broaden the former law governing venue in diversity cases, First of Michigan Corp., 141 F.3d at 263, this Court concludes that venue in this district is proper and that defendants’ motion for dismissal for improper venue is without merit. Defendants also ask, in the alternative, that the Court transfer venue under 28 U.S.C. § 1404(a) to the Western District of Missouri because that district is a more convenient forum. Even in cases where venue is proper, a court may enter tain a motion to transfer if there exists a better forum for the resolution of the dispute between the parties. See Martin v. Stokes, 623 F.2d 469, 474 (6th Cir.1980) (“the application of § 1404(a) [is limited] to the transfer of actions commenced in a district court where both personal jurisdiction and venue are proper”); Great Lakes Bancorp v. Holbrock, No. 95-CV-72666-DT, 1996 WL 426439, at * 5 (E.D.Mich. Feb.29,1996). A. Standard for Transfer to a More Convenient Forum Defendants contend that transfer of venue to the Western District of Missouri is appropriate pursuant to 28 U.S.C. § 1404(a), which provides, “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The threshold consideration under § 1404(a) is whether venue would be proper in the United States District Court for the Western District of Missouri. An action “might have been brought” in a transferee court if: a. The court has jurisdiction" }, { "docid": "12601973", "title": "", "text": "in 1990 as a replacement for a similar subsection permitting venue in the judicial district “in which the claim arose.” See, e.g., 28 U.S.C. § 1391(a) (1988). The purpose of the “substantial part” language, Mitrano explains, was to eliminate the need to identify the district having the most significant connection to the claim at issue. Mitrano, 377 F.3d at 405. Under the new statute, therefore, venue may be proper in more than one district. Id. Accordingly, in determining whether events or omissions are sufficiently “substantial” to support venue, a court should “not focus only on those matters that are in dispute or that directly led to the filing of the action,” but rather “should review ‘the entire sequence of events underlying the claim.’ ” Id. (quoting First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir. 1998)). The Mitrano principles applied to the facts of this case point persuasively to the conclusion that venue in this case is proper in the Eastern District of Virginia. First, because plaintiffs Virginia headquarters is located in this district, and because defendant’s communications with and visits to that headquarters come within the “sequence of events underlying the claim” at issue here, those same business contacts provide a basis for venue as well as for personal jurisdiction. Id.; cf. Ciena Corp. v. Jarrard, 203 F.3d 312, 318 (4th Cir.2000) (noting that the nonresident defendant employee’s business trips to the forum “support the district court’s exercise of personal jurisdiction ... [and] provide a basis for venue [in the forum]”). Second, a substantial part of plaintiffs effort to win and maintain Red Bull as a client occurred at plaintiffs headquarters. Third and finally, a great part of the confidential information that defendant allegedly used to solicit Red Bull originated at the headquarters as well. Accordingly, a “substantial part” of the events giving rise to plaintiffs claim can be said to have occurred in the Eastern District of Virginia. C. Transfer of Venue Federal law provides that a district court may transfer any civil action to any other appropriate district court “[f]or the convenience of parties" }, { "docid": "23141532", "title": "", "text": "personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). The statute was amended in 1990 in order to broaden the venue provisions. The commentary following the 1990 revisions to § 1391(a)(2) states: The fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A, too. Indeed, district A should not be disqualified even if it is shown that the activities in district B were more substantial, or even the most substantial. Any other approach would restore the pinpointing problem that created the difficulties under the now discarded “claim arose” standard. If the selected district’s contacts are “substantial,” it should make no difference that another’s are more so, or the most so. David D. Siegel, Commentary on the 1988 and 1990 Revisions of Section 1391, Subdivision (a), Clause (2), 28 U.S.C.A. § 1391 (1993). Before 1990, § 1391 limited proper venue to the judicial district “in which a substantial part of the acts, events or omissions occurred that gave rise to the claim for relief.” Onderik v. Morgan, 897 F.2d 204, 207 (6th Cir.1989). Accordingly, our interpretation of the pre-1990 § 1391 stated that “[v]enue is proper in the judicial district in which the claim arose.” Onderik, 897 F.2d at 206 (emphasis added). The amended version of § 1391 replaced this standard in favor of proper venue in “a judicial district in which a substantial part of the events giving rise to the claim arose.” 28 U.S.C. § 1391(a)(2) (emphasis added). The 1990 amendment to § 1391(a)(2) renders the Onderik standard obsolete. See Setco Enterprises Corp. v. Robbins, 19 F.3d 1278, 1280-81 (8th Cir.1994) (stating that under the amended statute, courts “no longer ask which district among the two or more potential forums is the ‘best’ venue. Rather, [they] ask whether the district the plaintiff chose had a substantial connection to the claim, whether or not other forums had greater contacts”); Bates v. C & S Adjusters, Inc., 980" }, { "docid": "4367721", "title": "", "text": "proper in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). The defendants contend that venue in this case is improperly laid because the cause of action did not arise in this district, and the only district in which the secretary of state “resides” is where the State capital is located: Michigan’s Western District. They cite O’Neill v. Battisti 472 F.2d 789 (6th Cir.1972), in support of that argument. In that case, the United States District Court for the Northern District of Ohio issued a temporary restraining order enjoining the Ohio Supreme Court from taking action in a disciplinary proceeding involving a State lower court judge and from enforcing an order of the state supreme court. The Sixth Circuit reasoned that venue was improper in the Northern District of Ohio under the version of Section 1391 then in effect, which allowed a civil action “in the judicial district where all the defendants reside or where the claim arose.” The court noted that regular sessions of the state supreme court were held only in the state capital, which was in the Southern District of Ohio, so venue was proper only in that district. Id. at 791 (stating that “the official residence of the Supreme Court of Ohio is in the place where it performs its official duties”). However, Section 1391 “was amended in 1990 in order to broaden the venue provisions.” First of Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998). Under the present statute, a plaintiff “may file his complaint in any forum where a substantial part of the events or omissions giving rise to the claim arose; this includes any forum with a substantial connection to" }, { "docid": "23092090", "title": "", "text": "district court concluded that ABEM’s “denial of the [certification test] applications and appeals by Daniel and five other individual plaintiffs and [its] official communication of this action to Plaintiffs in New York is sufficient to constitute a substantial part of the events giving rise to Plaintiffs’ claims.” Daniel v. American Bd. of Emergency Med., 988 F.Supp. at 274-75. Once again, we must disagree. Although our court has had few occasions to interpret § 1391(b)(2) since that statute was amended in 1990, certain principles are clear. Section 1391(b)(2) does not restrict venue to the district in which the “most substantial” events or omissions giving rise to a claim occurred. See Bates v. C & S Adjusters, Inc., 980 F.2d 865, 868 (2d Cir.1992); David D. Siegel, “Commentary on the 1988 and 1990 Revisions of Section 1391, Subdivision (a), Clause (2),” printed in 28 U.S.C.A. § 1391 at 9-10 (West 1993); see also First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.1998) (interpreting analogous “substantial part of the events or omission” language in 28 U.S.C. § 1391(a)(2) (relating to jurisdiction founded only on diversity)); Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir.1994) (same). Rather, as we recently explained, § 1391(b)(2) “contemplates that venue can be appropriate in more than one district” and “permits venue in multiple judicial districts as long as a ‘substantial part’ of the underlying events took place in those districts.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d at 356. Nevertheless, the “substantial events or omissions” requirement does limit the forums available to plaintiffs. See id. at 357 (cautioning district courts to “take seriously the adjective ‘substantial’ ” in discharging duty to “construe the venue statute strictly”). This is so because, as the Supreme Court explained before the amendment of section 1391, “[i]n most instances, the purpose of statutorily defined venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.” Leroy v. Great W. United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) (emphasis in original); see also Bates" }, { "docid": "18419092", "title": "", "text": "the instant case should be dismissed, pursuant to 28 U.S.C. § 1391(b) (“Section 1391(b)”), for improper venue, or, in the alternative, transferred, pursuant to 28 U.S.C. § 1406 (“Section 1406”), to the Southern District of Florida. For the following reasons, the Court finds that plaintiff has shown that venue for this action is proper in the Eastern District of New York. 1. Legal Standard Section 1391(b) provides, in relevant part, that: (b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(b). It is undisputed that the “substantial part” provision of Section 1391(b)(2) directs the venue inquiry in this case. (Defs.’ Mem. at 22-23.) Courts conduct a two-part inquiry to determine whether venue is appropriate under Section 1391(b)(2). First, the Court must “identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir.2005). Second, the Court determines whether “a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether ‘significant events or omissions material to [those] claim[s] ... have occurred in the district in question.’ ” Id. (quoting Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir.2005)). As to the second part of this inquiry, the Court notes that “ ‘[substantiality’ for venue purposes is more a qualitative than a quantitative inquiry.” Daniel, 428 F.3d at 432-33. As such, “[w]hen material acts or omissions within the forum bear a close nexus to the claims," }, { "docid": "10860733", "title": "", "text": "connection to Mr. Baker, other than the fact he became a member of FS, which happened to include a Kansas resident member. That connection is clearly inadequate to support personal jurisdiction over Mr. Baker. B. Venue Dismissal as to Mr. Walker and Mr. Baker is further mandated by 28 U.S.C. § 1391(a), which provides that in diversity actions a claim may be brought in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ..., or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. Plaintiff contends both (a)(2) and (a)(3) apply in this case. Subsection (a)(3) does not apply because this case could have been brought in Arizona. Therefore, for venue to be proper, it must fall within subsection (a)(2). Under subsection (a)(2), “ ‘[a] substantial part of the events’ may have occurred in more than one district, and venue may be proper even if contacts with another district were more substantial.” Barteldes v. Hyman Properties, Inc., No. 98-2333-JWL, 1998 WL 928395, at *4 (D.Kan. Nov.9, 1998). “ ‘The court must decide whether the forum activities played a substantial role in the circumstances leading up to the plaintiffs claim.’ ” Id. (quoting Andrean v. Secretary of the United States Army, 840 F.Supp. 1414, 1422 (D.Kan. 1993)). “The forum activities must have been events significant to the plaintiffs claims.” Id. Here, Mr. Tyler’s conversations with Mr. Walker did not play a substantial role in the circumstances leading up to plaintiffs claim for damages to its combines. Those circumstances — i.e., the formation of the L.L.C. to perform the contract for the sampling program, the sampling program itself, the sanitation process, and the settlement agreement — all took place in Arizona, not Kansas. Therefore, as to Mr. Walker and Mr. Baker, proper venue lies only in Arizona. C. Forum Non Conveniens" }, { "docid": "7058865", "title": "", "text": "where the action may be brought involves an interpretation of the venue statute and is, therefore, a question of law subject to de novo review.”). The district court held that “[vjenue is proper in Wyoming,” pursuant to § 1391(a)(2), because “[t]he events giving rise to this litigation all concern [Bar-tile’s] actions in [Wyoming].” ApltApp. at 1651. For the following reasons, we agree. In a diversity action, venue lies in (1) a judicial district where any defendant resides, ... (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, ... or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a)(1) — (3). The only possible ground for venue at issue here is under § 1391(a)(2). Under that provision, venue is not limited to the district with the most substantial events or omissions. See First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.1998); Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir.1994); cf. Monument Builders of Greater Kan. City, Inc. v. Am. Cemetery Ass’n of Kan., 891 F.2d 1473, 1479 (10th Cir.1989) (noting, under a prior version of 28 U.S.C. § 1391, that venue was proper in multiple districts). Section 1391(a)(2) instead “contemplates that venue can be appropriate in more than one district ... [and] permits venue in multiple judicial districts as long as a substantial part of the underlying events took place in those districts.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 356 (2d Cir.2005) (internal quotation marks omitted). We conduct a two-part analysis when reviewing challenges to venue under § 1391(a)(2). First, we examine the nature of the plaintiffs claims and the acts or omissions underlying those claims. See id. at 357; Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir.2003); Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 295 (3d Cir.1994). In this action, EMC requested a declaratory judgment that the CGL" }, { "docid": "16018728", "title": "", "text": "and LULAC have standing to sue on behalf of their members. As in Legal Aid Society of Haivaii, see id., at 1029-31, this conclusion does not preclude a determination that these organizations lack standing later in the litigation. C. Venue The incident of racial profiling alleged by Rodriguez occurred in Santa Clara County, which is located in the Northern District of California; the incidents alleged by Lopez and Washington occurred in Merced County, which is in the Eastern District of California. Defendants argue that the proper venue for the Lopez and the Washington incidents is the Eastern District rather than the Northern District. However, venue is proper in any district “in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2) (1999). Section 1391(b)(2) does not require that a majority of the events have occurred in the district where suit is filed, nor does it require that the events in that district predominate. See Sidco Indus. Inc. v. Wimar Tahoe Corp., 768 F.Supp. 1343, 1346 (D.Or.1991) (language of §, 1391(b)(2) “contemplates that there may be more than one district in which a substantial part of the events giving rise to the claim occurred, and that venue would be proper in each such district”); see also Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.1992); First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.1998). All that Plaintiffs need show is that a substantial part of the events giving rise to their claims occurred in the Northern District of California. Rodriguez, a resident of Santa Clara County, allegedly was stopped in Santa Clara County, in the Northern District. Moreover, Plaintiffs claim in their class action allegations that Defendants routinely utilize racial profiling in the Pacheco Pass area, much of which is located in the Northern District. Plaintiffs allege that the stops of Rodriguez, Lopez, Washington and all other purported class members are related because they stem from the same alleged practice or policy of racial profiling in the Pacheco Pass area. Plaintiffs thus clearly are alleging" }, { "docid": "23141531", "title": "", "text": "dis miss on the basis of improper venue. The plaintiffs refer to the district court’s finding that “the most substantial event giving rise to plaintiffs’ complaint ... was the Bramlets’ filing of an arbitration action, which they initiated in Florida.” First of Michigan and Sobol argue that proper venue is not limited to the district where the most substantial event giving rise to the complaint arose. Rather, the plaintiffs cite 28 U.S.C. § 1391(a)(2) to support their argument that venue is proper wherever “a substantial part” of the events giving rise to the claim occurred. 28 U.S.C. § 1391(a) states in relevant part: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). The statute was amended in 1990 in order to broaden the venue provisions. The commentary following the 1990 revisions to § 1391(a)(2) states: The fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A, too. Indeed, district A should not be disqualified even if it is shown that the activities in district B were more substantial, or even the most substantial. Any other approach would restore the pinpointing problem that created the difficulties under the now discarded “claim arose” standard. If the selected district’s contacts are “substantial,” it should make no difference that another’s are more so, or the most so. David D. Siegel, Commentary on the 1988 and 1990 Revisions of Section 1391, Subdivision (a), Clause (2), 28 U.S.C.A. § 1391 (1993). Before 1990, § 1391 limited proper venue to the judicial" }, { "docid": "23141530", "title": "", "text": "court erred by dismissing their case rather than transferring it to a proper venue; they instead contend that the district court applied an obsolete standard in determining that venue was improper in the first instance, thereby challenging the district court’s interpretation of the venue statute. As the district court’s determination of whether a plaintiff has filed his action in the proper venue involves an interpretation of the venue statute, it is a question of law subject to de novo review. See Pierce v. Shorty Small’s of Branson Inc., 137 F.3d 1190 (10th Cir.1998) (citing Hooker v. United States Dep’t of Health & Human Servs., 858 F.2d 525, 528 n. 2 (9th Cir.1988)). We therefore review de novo the district court’s determination that the plaintiffs filed their case in an improper venue. See United States v. Baro, 15 F.3d 563, 566 (6th Cir. 1994) (stating that a district court’s legal conclusions are reviewed de novo). III. First of Michigan and Sobol contend that the district court applied an “incorrect, obsolete” standard in granting the motion to dis miss on the basis of improper venue. The plaintiffs refer to the district court’s finding that “the most substantial event giving rise to plaintiffs’ complaint ... was the Bramlets’ filing of an arbitration action, which they initiated in Florida.” First of Michigan and Sobol argue that proper venue is not limited to the district where the most substantial event giving rise to the complaint arose. Rather, the plaintiffs cite 28 U.S.C. § 1391(a)(2) to support their argument that venue is proper wherever “a substantial part” of the events giving rise to the claim occurred. 28 U.S.C. § 1391(a) states in relevant part: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred ... or (3) a judicial district in which any defendant is subject to" }, { "docid": "12601972", "title": "", "text": "due process; instead, what matters here is that defendant purposefully established sufficient contacts with Virginia to made jurisdiction constitutionally reasonable. B. Venue The parties to this case agree that venue is proper in the Eastern District of Virginia only if the record reflects that “a substantial part of the events or omissions giving rise to the claim occurred” in this district. See 28 U.S.C. § 1391(a)(2) (2004). Defendant contends that because the contract giving rise to plaintiffs claim was formed in Florida, and allegedly breached outside of this district, no “substantial part” of the events underlying this action occurred in the Eastern District of Virginia. To survive a motion to dismiss for improper venue when no evidentiary hearing is held, a plaintiff need only make a prima facie showing of venue. Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir.2004); see Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). As the Fourth Circuit recently noted in Mitrano v. Hawes, 377 F.3d 402 (4th Cir.2004), section 1391(a)(2) was added in 1990 as a replacement for a similar subsection permitting venue in the judicial district “in which the claim arose.” See, e.g., 28 U.S.C. § 1391(a) (1988). The purpose of the “substantial part” language, Mitrano explains, was to eliminate the need to identify the district having the most significant connection to the claim at issue. Mitrano, 377 F.3d at 405. Under the new statute, therefore, venue may be proper in more than one district. Id. Accordingly, in determining whether events or omissions are sufficiently “substantial” to support venue, a court should “not focus only on those matters that are in dispute or that directly led to the filing of the action,” but rather “should review ‘the entire sequence of events underlying the claim.’ ” Id. (quoting First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir. 1998)). The Mitrano principles applied to the facts of this case point persuasively to the conclusion that venue in this case is proper in the Eastern District of Virginia. First, because plaintiffs Virginia headquarters is located in" }, { "docid": "23438219", "title": "", "text": "favor of jurisdiction in Rhode Island. (d) Specific Jurisdiction — Conclusion Applying the specific jurisdiction tripartite analysis, we conclude that the district court properly asserted jurisdiction over Astro-Med’s claims against Nihon Kohden. We need go no further. B. Venue Nihon Kohden argues that Rhode Island was not the proper venue for Astro-Med’s lawsuit, and the district court should have either dismissed the claim or transferred the case to a different district in accordance with 28 U.S.C. § 1404. 1. Determining Venue The applicable venue provision of Title 28 states: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought. 28 U.S.C. § 1391(a). Although Nihon Kohden is a California business, it resides for purposes of venue in Rhode Island. Plant is a resident of Florida. As the defendants reside in different states, subsection (1) does not apply. Under subsection (2), the question becomes whether the District of Rhode Island is “a judicial district in which a substantial part of the events ... giving rise to the claim occurred.” Id. In determining whether Rhode Island is a district in which a substantial part of the events occurred, we look “not to a single ‘triggering event’ prompting the action, but to the entire sequence of events underlying the claim.” Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir.2001) (quoting First of Mich. Corp. v. Bramlet, 141 F.3d 260, 263-264 (6th Cir.1998)). In addition, we do not focus on the actions of one party. Rather, our approach takes a “holistic view of" }, { "docid": "17736764", "title": "", "text": "and quotation marks omitted). Indeed, if the Jacobsen Children were residents of the District, this would be a much easier decision for the Court. Nevertheless, this Court must take into account the sui generis nature of this lawsuit. The Cicippio plaintiffs brought their suit in the District of Columbia, rather than in another forum, because a federal statute established this Court as the only forum where such a suit against a foreign state could be brought. See 29 U.S.C. § 1391(f)(4). Thus, the District maintains an interest in adjudicating this case, because it relates to an underlying action against a foreign state brought under the FSIA. See Flatow, 999 F.Supp. at 6 (noting “this Court’s special role in the development of foreign sovereign immunity jurisprudence”). B. Venue In addition to challenging jurisdiction, defendants argue that the Jacobsen Children’s claims should be dismissed because of improper venue under 28 U.S.C. § 1391(a)(2), which provides that an action may be brought in “a judicial district in which a substantial part of the events or omissions giving rise to the claims occurred.” See Dooley v. United Tech. Corp., 786 F.Supp. 65, 80 (D.D.C.1992). In 1990, Congress amended § 1391(a) by adding the more expansive language of § 1391(a)(2) in an effort to avoid wasteful litigation when different forums were involved in a dispute. See Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.1994). Accordingly, plaintiffs are not required to establish that the District of Columbia has the most substantial contacts to the dispute, but rather only that “a substantial part of the events occurred” here. Indeed, a court no longer must determine which forum represents the “best” venue. See Uffher v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir.2001); see also First Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998) (citing Setco Enterprises Corp. v. Robbins, 19 F.3d 1278, 1280-81 (8th Cir.1994); Bates v. C & S Adjusters, Inc., 980 F.2d 865, 866-868 (2d Cir.1992); Cottman Transmission Sys., Inc., 36 F.3d at 294). Therefore, venue in the District of Colum bia is proper, even if it" }, { "docid": "15417643", "title": "", "text": "of the acts or omissions giving rise the claims occurred in this district. The Sixth Circuit addressed the “substantial connection” requirement in § 1391(a)(2) in First of Michigan Corp. v. Bramlet, 141 F.3d 260 (6th Cir.1998). The court stated that the purpose of the 1990 amendment to § 1391(a)(2) was to replace a standard which provided for venue only in the district in which the claim arose with a standard allowing venue in any district having a substantial connection to the claim. The court explained, [t]he fact that substantial activities took place in district B does not disqualify district A as proper venue as long as “substantial” activities took place in A, too. Indeed, district A should not be disqualified even it is shown that the activities in district B were more substantial, or even the most substantial .... If the selected district’s contacts are “substantial,” it should make no difference that another’s are more so, or the most so. Id. at 263 (quoting commentary to 28 U.S.C. § 1391). Thus, venue is proper in any district having a substantial connection with the events giving rise to the claim. The Court concludes that the Western District of Michigan easily meets the “substantial connection” requirement with respect to each of Steelcase’s claims. Steel-case has its headquarters and significant manufacturing facilities in this district. (Jackson Decl. ¶ 2.) Defendants transmitted their purchase orders to Steelcase in Michigan through Steelcase’s “electronic data interface” (“EDI”), and Steelcase notified Defendants of its acceptance of the purchase orders by sending an acknowledgment from Michigan to Defendants through the EDI link. (Id. ¶ 5.) Most of the goods Steelcase sold to Defendants, either directly or indirectly through the assigned accounts, were manufactured in Michigan. (O’Connor Decl. ¶ 4; Jackson Decl. ¶ 6.) Title to and the risk of loss of the goods purchased by Defendants passed to Defendants in Michigan. (O’Connor Decl. ¶ 7.) Defendants sent their payments for goods to Steelcase in Michigan. (Waugh Decl. ¶ 5.) In addition, Defendants sent account assignment documents to Steelcase in Michigan, (id. ¶ 7, Ex. S.), sent false and" }, { "docid": "4367722", "title": "", "text": "court judge and from enforcing an order of the state supreme court. The Sixth Circuit reasoned that venue was improper in the Northern District of Ohio under the version of Section 1391 then in effect, which allowed a civil action “in the judicial district where all the defendants reside or where the claim arose.” The court noted that regular sessions of the state supreme court were held only in the state capital, which was in the Southern District of Ohio, so venue was proper only in that district. Id. at 791 (stating that “the official residence of the Supreme Court of Ohio is in the place where it performs its official duties”). However, Section 1391 “was amended in 1990 in order to broaden the venue provisions.” First of Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998). Under the present statute, a plaintiff “may file his complaint in any forum where a substantial part of the events or omissions giving rise to the claim arose; this includes any forum with a substantial connection to the plaintiffs claim.” Ibid. The defendants’ argument that Michigan’s secretary of state performs her official duties only in Lansing, Michigan and therefore may be sued only there does not withstand even the basest analysis. Of the reported Sixth Circuit decisions brought against the Michigan secretary of state involving election law issues over the past twenty-five years, seven have been brought in the Eastern District, see Breck v. State of Mich., 203 F.3d 392 (6th Cir. 2000) (state judges brought equal protection challenge in the Eastern District of Michigan claiming that state laws rendered them ineligible for reelection based on age); Citizens for Legislative Choice v. Miller, 144 F.3d 916 (6th Cir.1998) (voters and voters’ rights groups brought suit in the Eastern District of Michigan challenging a state constitutional amendment imposing lifetime term limits on state legislators); Mich. State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir.1997) (labor unions filed complaint in the Eastern District of Michigan seeking declaratory and injunctive relief against secretary of state challenging four provisions of the Michigan State Campaign Finance Act);" } ]

[ { "docid": "23279396", "title": "", "text": "is made within three months after the first publication of the work.” Oddo has not shown that the copyrights in the articles have ever been registered, much less within three months of their publication. Section § 412 therefore precludes Oddo from collecting statutory damages, or attorneys’ fees under § 505. Oddo may, however, recover the actual damages he suffered from infringement of the copyrights in the articles. § 504(b). III. Preemption The federal copyright law preempts any other “legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright.” § 301(a). Ries argues that Oddo’s state law causes of action are preempted, requiring reversal of the district court’s general damages award of $1,000. We disagree. Section 301(a) preempts a state-created right if that right “may be abridged by an act which, in and of itself, would infringe one of the exclusive rights [listed in § 106].” Harper & Row, Publishers v. Nation Enterprises, 723 F.2d 195, 200 (2d Cir.1983), cert. granted, — U.S.-, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984). But if violation of the state right is “predicated upon an act incorporating elements beyond mere reproduction or the like,” id., there is no preemption. At least some of Oddo’s state law claims pass the preemption test stated above, and so the general damages award may stand. For example, Oddo alleged conversion of the papers comprising his manuscript. Conversion of tangible property involves actions different from those proscribed by the copyright laws, and thus is not preempted. Harper & Row, 723 F.2d at 201. Oddo also claimed that Ries breached the fiduciary duty that Ries owed Oddo as a partner. Because a partner’s duty to his co-partner is quite different from the interests protected by copyright, this cause of action is also not preempted. The judgment of the district is vacated insofar as it awards Oddo statutory damages and attorneys’ fees. The cause is remanded for an award of the actual damages that Oddo suffered from infringement of his copyrights in the articles. On remand the district court may also consider whether," } ]

[ { "docid": "4471274", "title": "", "text": "court’s decision to bar the action on statute of limitations grounds, the court held that “claims of co-ownership, as distinct from claims of infringement, accrue when plain and express repudiation of co-ownership is communicated to the claimant, and are barred three years from the time of repudiation.” Id. at 1369. Finding that “[cjreation, rather than infringement was the gravamen of plaintiffs’ ownership claim,” the court held that the claim “did not accrue upon subsequent publication” of the work in question. Id. at 1371. As in Merchant, the Zuill decision barred plaintiffs’ ownership claims and the remedies that flowed therefrom. See id. at 1371 (barring “a declaratory judgment of co-ownership and the relief ancillary to such a claim”). These remedies include an accounting for profits by a co-owner, which arises from equitable doctrines such as unjust enrichment and general principles of co-ownership. See id. at 1369 (citing Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984)); cf. Merchant, supra, 92 F.3d at 51 (noting that plaintiffs also filed a claim for an accounting). However, the court noted that certain rights “can withstand the statute of limitations,” and cited to legislative history showing the Congress intended the statute of limitations under the Copyright Act to extend only to remedies, and not to substantive rights. See id. at 1369-70. Those substantive rights include, inter alia, the right as a copyright owner to sue for infringement, which lasts as long as the copyright itself, namely life of the creator plus fifty years. See id. at 1369; 17 U.S.C. § 302(b) (discussing duration of copyright protection). These substantive rights were present in neither Zuill nor Merchant, where plaintiffs’ had only claimed co-ownership, and because, in any event, co-owners cannot be liable to each other for infringement. See Zuill, supra, 80 F.3d at 1369. But such rights could be present where a plaintiff sufficiently pleads an infringement cause of action. The implication of the holdings in Merchant and Zuill is that while a dismissal of an ownership claim as time-barred bars certain remedies associated with ownership, it does not extinguish the right of a copyright owner" }, { "docid": "6669696", "title": "", "text": "answers to these questions are governed by the Copyright Act. For example, Cambridge alleges that Das Hummel-buch “constitutes a joint work of joint authorship, with Seeman[n] a joint author thereof,” and that at the time Fink obtained the Renewal Copyright, Seemann’s sole surviving next of kin was “entitled to share in the 1962 renewal of the Book copyright as a co-owner of the renewal ... even though she was not named in the renewal registration.” (Am.Compl.1ffl 33, 46). Furthermore, Cambridge alleges that “Fink validly renewed the United States copyright in the Book on June 8, 1962[.]” (Id. ¶ 41). Fink’s June 8, 1962 copyright application shows that Fink was making a claim as a “proprietor of copyright in a work made for hire.” (Defs.’ Ex. A-5). Thus, Cambridge’s allegations set forth in the Amended Complaint raise the same issues requiring interpretation and application of the Copyright Act as discussed above. Therefore, the well-pleaded complaint rule does not alter this court’s conclusion that the Copyright Act governs this action. 2. The Applicable Statute of Limitations Pursuant to the Copyright Act, “[c]ivil actions seeking copyright remedies are barred unless ‘commenced within three years after the claim accrued.’ ” Estate of Burne Hogarth, 342 F.3d at 163 (quoting 17 U.S.C. § 507(b)). Goebel asserts that because Cambridge’s claims are preempted by the Copyright Act, the Act’s three-year statute of limitations is controlling. In contrast, Cambridge argues that even if the Copyright Act governs the case, the statute of limitations for its accounting and constructive trust claims must be based on state law. This court finds that the Copyright Act’s limitations period applies to the plaintiffs claims. In support of its argument, Cambridge relies on the Fifth Circuit decision in Goodman v. Lee. In that case, the court had held that there was exclusive original jurisdiction over the action because the plaintiffs “request for a.declaratory,judgment to establish co-authorship under the Copyright Act necessitated the application and interpretation of the copyright ownership provisions of the Act[,]” namely, the provisions defining a joint work and providing that “joint authors of a work are co-owners of a" }, { "docid": "4471337", "title": "", "text": "(ii) preventing incumbent actors from altering the Designs, and (iii) keeping actors’ makeup in stock. (Comply 52.) . All defendants except Polygram Video have joined the motion. These defendants are hereinafter referred to as \"defendants.\" . A claim for accounting is a remedy premised on a determination of co-ownership because the duty to account for profits “presupposes a relationship as co-owners of the copyright.” Weber v. Geffen Records, 63 F.Supp.2d 458, 464 (S.D.N.Y.1999). . The legislative history of the Act indicates that allowing related works to be registered together was designed to avoid cases where \"the technical necessity for separate application and fees has caused copyright owners to forego copyright altogether.” H.R.Rep. No. 94-1476, at 154 (1976), U.S.Code Cong. & Admin.News 1976, 5659. . Defendants’ \"joint work” argument is considered with respect to plaintiff’s infringement claims, infra. . The Court notes that plaintiff’s claim for accounting is asserted under state as well as federal law. Section 301 of the Copyright Act expressly preempts state law claims that are equivalent to claims \"falling within the scope” of the Copyright Act, including a state law claim for an accounting. See Richard Feiner & Co., Inc. v. H.R. Indus., Inc., 10 F.Supp.2d 310, 316 (S.D.N.Y.1998). The Court therefore dismisses plaintiff’s claim for accounting, insofar as it is asserted under New York law, as pre-empted. See id..; see also Weber, supra, 63 F.Supp.2d at 463 (dismissing plaintiff’s state law claim for accounting as preempted where Copyright Act ownership claim was time-barred). . A certificate of registration from the United States Register of Copyrights constitutes prima facie evidence of the valid ownership of a copyright, although that presumption of ownership may be rebutted. See Rogers v. Koons, 960 F.2d 301, 306 (2d Cir.1992). . The Court addresses the sufficiency of the Complaint as to certain of the corporate defendants in its consideration of jurisdiction, infra. . The pertinent section of the Senate report states: \"The committee wishes to emphasize that it is the committee’s intention that the statute of limitations, contained in this bill, is to extend to the remedy of the person affected thereby," }, { "docid": "16388095", "title": "", "text": "v. Ries, 743 F.2d 630, 632 (9th Cir.1984). “[E]ach co-owner has an independent right to use or license the use of the copyrights.” See id. at 633. An action for an accounting or determination of ownership as between alleged co-owners is founded in state law and does not arise under the copyright laws. See id. These rules apply whether co-ownership arises from joint authorship or through co-ownership of rights through a partnership. See id. II. DISCUSSION All of the parties to this action are California domieilaries and so federal subject matter jurisdiction will subsist only if there is a federal question. Plaintiffs argue that the action must be remanded because the claims are all based in state law causes of action and because defenses based in federal law are insufficient to confer subject matter jurisdiction. Defendant first argues that the doctrine of complete preemption makes this a federal case. The fact that certain copyright provisions, such as 17 U.S.C. § 204, which requires that any license granting exclusive rights to another must be in writing, may preempt certain state law provisions, such as those permitting oral agreements, does not change a state-based cause of action into a federal one. See, e.g., Valente-Kritzer Video v. Pinckney, 881 F.2d 772, 775-76 (9th Cir.1989); PMC, Inc. v. Saban Entertainment, Inc., 45 Cal.App.4th 579, 584, 52 Cal.Rptr.2d 877 (1996). Biafra’s defenses are not to be considered in determining whether or not the Court has subject matter jurisdiction. See Vestron, 889 F.2d at 1381. As for the two state claims most likely to run afoul of complete preemption, plaintiffs have pled them in terms that avoid preemption. A state law right is completely preempted only if the work at issue is copyrightable and the state law grants right equivalent in scope to the rights granted under copyright. See Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir.1998). The unfair business practices claim focuses on self-dealing with respect to promotional activities and failure to pay royalties; the claim does not attempt to mimic an infringement action by claiming unfair use of the works at" }, { "docid": "11221607", "title": "", "text": "concealed from plaintiff that they were developing and producing a ‘Columbo’ episode based upon ‘Never Trust A Gambler’ so as to deprive plaintiff of his fees and credits[.]” The gravamen of these allegations is that Defendants fraudulently promised to honor Plaintiffs rights as an author — his purported copyright rights — and then actually violated those rights. Simply alleging that Defendants violated Plaintiffs rights as an author is “equivalent” to a copyright claim under § 301(a). However, Plaintiff adds an additional element — that Defendants fraudulently promised not to violate his authorship rights. As such, the Ninth Circuit’s ruling in Valente-Kritzer governs this case. Therefore, Plaintiffs fraud and negligent misrepresentation causes of action are not preempted by federal copyright law. 2. Plaintiff's Fifth Cause of Action for Conversion Plaintiff asserts that Defendants have “unlawfully and wrongfully converted for their own use the “Never Trust A Gambler” script in producing and distributing the “Columbo” episode “Strange Bedfellows.” Compl. ¶ 37. However, Plaintiff alleges that he gave a copy of his “Never Trust A Gambler” script to Chris Seiter; the tangible manuscript was not taken from Plaintiff. Rather, Plaintiff alleges that Defendants wrongfully copied the ideas expressed in the “Never Trust A Gambler” script and then converted them for their own use. Generally, the copying and distribution of literary intangible property does not state a claim for conversion. See Witkin, Summary of California Law, Torts, § 613. Rather, “[t]he infringement of property rights in a literary or artistic production is a distinct tort (plagiarism).” Id.; see also Nimmer & Nimmer, Nimmer on Copyright, § 1.01[B](l)(i) (“The torts of conversion and trespass relate to interference with tangible rather than intangible property[.]”). Thus, Plaintiffs conversion claim seems more properly a claim for plagiarism or misappropriation. Regardless of how it is cast, however, Plaintiffs Fifth Cause of Action is clearly preempted by federal copyright law because it makes the crucial allegation that Defendants have wrongfully used and distributed Plaintiffs work of authorship. Under the second prong of the Del Madera test, this allegation is clearly equivalent to a copyright claim. It does not add any" }, { "docid": "18349917", "title": "", "text": "the copyright in trust for the YNOT partnership based on the argument that a copyright “may be held in trust for the benefit of a party rightfully entitled, thereto. ” Intervening-plaintiffs’ citation to the 1915 decision in Maurel v. Smith and its progeny is misplaced because the court’s finding of constructive trust in Maurel was predicated on the finding of co-authorship, which entitles the co-author to the full panoply of copyright ownership rights. As detailed above, because intervening-plaintiffs’ claim of co-authorship fails as a matter of law, so does their claim for constructive trust. Summary judgment is granted in favor of plaintiffs declaring that YNOT does not have an ownership interest in Dodgeball. Summary judgment is also granted in favor of plaintiffs dismissing intervening-plaintiffs’ Sixteenth Claim for Relief seeking declaratory judgment of ownership on behalf of YNOT. Thus, neither James nor YNOT have any ownership or exclusive interest in the Dodgeball screenplay as a matter of law. Intervening-plaintiffs’ Fourth claim for relief accusing plaintiffs of “palming off’ the screenplay as their own is dismissed. Likewise, intervening-plaintiffs’ First, Second and Third claims for relief against defendants for copyright infringement must also be dismissed for lack of standing to bring an infringement action. C. State Law Claims 1. Preemption Plaintiffs claim that certain of intervening-plaintiffs’ state law claims are preempted by federal copyright law, namely, breach of contract, conversion, conspiracy to commit conversion, misappropriation, and quantum meruit. The subject matter requirement is satisfied here because the common subject of the claims is Dodgeball, a screenplay for a motion picture, which is a copyrightable work. The general scope requirement is satisfied with respect to the breach of contract, conver sion, conspiracy and misappropriation claims because the act that gave rise to these claims is Thomas’s alleged failure to treat James as a co-author and to account to him for profits, which is covered by federal copyright law. Under the “restrictive view” of what qualifies as an extra element, none of these claims include any extra elements that make them qualitatively different from a claim for co-authorship under the Copyright Act. As such, the" }, { "docid": "6669698", "title": "", "text": "copyright in the work.” Goodman, 78 F.3d 1007, 1011 (5th Cir.1996) (describing its earlier decision regarding subject matter jurisdiction), cert. denied, 519 U.S. 861, 117 S.Ct. 166, 136 L.Ed.2d 108 (1996). Nevertheless, following a jury verdict establishing that the plaintiff was a joint author and therefore a co-owner of a copyright under the Copyright Act, the court determined that the plaintiffs claim for an accounting was “governed in all respects by state law.” Id. at 1012. In particular, the court found that the accounting claim was governed by the state statute of limitations rather than the statute of limitations set forth in section 507(b) of the Copyright Act. Id. at 1013. The court reasoned that the Copyright Act “provides that ‘[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued’ ” but that “this case does not present an action that is ‘maintained under the provisions’ of the Copyright Act” because the Act’s provisions do not “detail any action available to a co-owner for an accounting.” Id. (quoting 17 U.S.C. § 507(b)). Therefore, the court concluded, “even though the ease requires an interpretation of the Copyright Act’s definition of a joint work — thereby compelling the assumption of federal jurisdiction — the action is not being maintained under the provisions of the Copyright Act: There are no provisions in the Act establishing or governing such an action.” Id. (emphasis in original). Goodman is at odds with the weight of authority. Courts including the Second, Sixth and Ninth Circuits have ruled that state law claims that are preempted by the Copyright Act or dependent upon a copyright claim are controlled by the Copyright Act’s three-year statute of limitations. See, e.g., Merchant, 92 F.3d at 56 (claims for a declaration of copyright ownership rights and an accounting of profits are time-barred three years after accrual); Ritchie, 395 F.3d at 289 (state law claims preempted by Copyright Act are properly recharacterized as copyright claims and subject to the Act’s three-year statute of limitations); Zuill v. Shanahan, 80 F.3d 1366, 1369" }, { "docid": "15073089", "title": "", "text": "to perform work for him that she would not otherwise have done — a qualitatively different claim which the Copyright Act does not preclude. See Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 200-01 (2nd Cir. 1983) (“when a state law violation is predicated upon an act incorporating elements beyond mere reproduction or the like, the rights involved are not equivalent and preemption will not occur”), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Brignoli v. Batch Hardy and Scheinman, Inc., 645 F.Supp. 1201, 1205 (S.D.N.Y.1986) (fraud claim contained extra element of misrepresentation and therefore withstood motion to dismiss on preemption grounds). Therefore, defendant’s motion to dismiss plaintiff’s claim for fraud on preemption grounds is denied. 2. Count II — Civil Theft Plaintiff's claim for civil theft, under Florida Statutes §§ 772.11 and 812.014, presents a different scenario. While the civil theft claim appears to fall within the subject matter of copyright (the first prong of the Eleventh Circuit test in Crow), it is not equivalent to exclusive rights set forth in § 106 (and therefore fails the second half of the Crow test). The lack of equivalency stems from the fact that plaintiff sues her co-author. Plaintiff alleges that she and defendant are co-authors of the controverted song. Co-authors of a copyrighted work may not bring an infringement claim under 17 U.S.C. § 501 et seq. See Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984). Rather, they stand in a similar position to “tenants in common,” with “each having an independent right to use or license the copyright, subject only to a duty to account to the other co-owner for any profits earned thereby.” In the absence of an agreement specifying otherwise, any profits earned are to be divided equally, “even where it is clear that [the] respective contributions to the joint work are not equal.” Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd" }, { "docid": "15073091", "title": "", "text": "on other grds., — U.S. -, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). See Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984). Instead of bringing an infringement action under the Copyright Act, a co-author may sue for an accounting and obtain her share of the royalties derived from the work. The court concludes that Congress, through the Copyright Act, did not mean to preempt actions for civil theft against coauthors. First, civil theft causes of action do not contain the same elements as copyright causes of action. Scienter is an issue in both civil and criminal theft, and in criminal enforcement of copyright infringement, see, e.g., Fla.Stat. §§ 772.11, 812.014; 17 U.S.C. §§ 506, but not in civil copyright infringement actions. See 17 U.S.C. § 501. Thus, while the court in Crow could deduce that the state criminal statute, with its scienter requirement, corresponded to the criminal enforcement provisions of the Copyright Act, 17 U.S.C. § 506, this court cannot assume that the additional element of scienter in a civil theft cause, not present in a civil infringement cause under the Copyright Act, could not constitute an additional element that would preclude preemption. Moreover, in this case, the plaintiff co-author cannot bring an action under the Copyright Act’s civil infringement provisions, 17 U.S.C. § 501 et seq., as § 501 is inapplicable to plaintiff. While Congress intended to preempt the field of state law where the Copyright Act applies, the Copyright Act neglected to provide for remedies between co-authors. The Copyright Act makes specific reference to co-authors, 17 U.S.C. §§ 101, 201(a), but the Act does not mention them in Chapter 5, “Copyright Infringement and Remedies,” as co-authors cannot infringe. Neither does the Act include accounting or any other device as a remedy between co-authors; courts have had to append such a remedy through the use of equitable doctrines. See Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd on other grounds, — U.S. -," }, { "docid": "6669699", "title": "", "text": "co-owner for an accounting.” Id. (quoting 17 U.S.C. § 507(b)). Therefore, the court concluded, “even though the ease requires an interpretation of the Copyright Act’s definition of a joint work — thereby compelling the assumption of federal jurisdiction — the action is not being maintained under the provisions of the Copyright Act: There are no provisions in the Act establishing or governing such an action.” Id. (emphasis in original). Goodman is at odds with the weight of authority. Courts including the Second, Sixth and Ninth Circuits have ruled that state law claims that are preempted by the Copyright Act or dependent upon a copyright claim are controlled by the Copyright Act’s three-year statute of limitations. See, e.g., Merchant, 92 F.3d at 56 (claims for a declaration of copyright ownership rights and an accounting of profits are time-barred three years after accrual); Ritchie, 395 F.3d at 289 (state law claims preempted by Copyright Act are properly recharacterized as copyright claims and subject to the Act’s three-year statute of limitations); Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir.1996) (Copyright Act’s three-year statute of limitations barred claim for declaration of co-ownership, as well as subsidiary remedy for an accounting, which was dependent upon that claim), cert. denied, 519 U.S. 1090, 117 S.Ct. 763, 136 L.Ed.2d 710 (1997); Johnson v. Berry, 228 F.Supp.2d 1071, 1077 (E.D.Mo.2002) (where “plaintiffs claim of co-ownership of copyright is barred as untimely, the derivative claim to an accounting of profits as a co-owner is also barred.”); Weber, 63 F.Supp.2d at 464 (“duty to account for profits presupposes a relationship as co-owners of the copyright” and “plaintiff cannot state a claim with any non-copyright cause of action that depends on a copyright claim that would be time-barred under the Copyright Act.”). This court finds these decisions persuasive. Indeed, “[i]t would be anomalous to hold that plaintiffs are precluded from seeking a declaration of co-authorship and, at the same time, that they are permitted to claim a breach of the duties that co-authorship might impose.” Johnson, 228 F.Supp.2d at 1077 (quoting Margo v. Weiss, No. 96 Civ. 3842(MBM), 1998 WL" }, { "docid": "15073090", "title": "", "text": "to exclusive rights set forth in § 106 (and therefore fails the second half of the Crow test). The lack of equivalency stems from the fact that plaintiff sues her co-author. Plaintiff alleges that she and defendant are co-authors of the controverted song. Co-authors of a copyrighted work may not bring an infringement claim under 17 U.S.C. § 501 et seq. See Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984). Rather, they stand in a similar position to “tenants in common,” with “each having an independent right to use or license the copyright, subject only to a duty to account to the other co-owner for any profits earned thereby.” In the absence of an agreement specifying otherwise, any profits earned are to be divided equally, “even where it is clear that [the] respective contributions to the joint work are not equal.” Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd on other grds., — U.S. -, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989). See Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984). Instead of bringing an infringement action under the Copyright Act, a co-author may sue for an accounting and obtain her share of the royalties derived from the work. The court concludes that Congress, through the Copyright Act, did not mean to preempt actions for civil theft against coauthors. First, civil theft causes of action do not contain the same elements as copyright causes of action. Scienter is an issue in both civil and criminal theft, and in criminal enforcement of copyright infringement, see, e.g., Fla.Stat. §§ 772.11, 812.014; 17 U.S.C. §§ 506, but not in civil copyright infringement actions. See 17 U.S.C. § 501. Thus, while the court in Crow could deduce that the state criminal statute, with its scienter requirement, corresponded to the criminal enforcement provisions of the Copyright Act," }, { "docid": "16764164", "title": "", "text": "As the Cambridge state-law accounting claim runs afoul of neither the SFQ jurisdictional criterion, nor the complete preemption criterion, it does not “arise under” the Copyright Act. Hence, the Act’s three-year limitations period is not applicable. C. The Affirmative Defense of Preemption The district court dismissed the Cambridge complaint on the ground that the Copyright Act preempted the Cambridge accounting claim. Many of the same factors that preclude our finding that the Copyright Act completely preempts the Cambridge state-law accounting claim likewise would militate against any finding for Goebel at summary judgment on its preemption defense. See Fifth Third Bank, 415 F.3d at 745 (noting that preemption is an affirmative offense upon which defendant bears the burden of proof); see also Brown v. Earthboard Sports USA, 481 F.3d 901, 913 (6th Cir.2007). With respect to the preemption of state-law causes of action involving copyrighted works, we have applied the two-pronged “subject matter”/“extra-element” test, Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147, 1164-65 (1st Cir.1994) (finding no Copyright Act preemption of state-law claim for trade secrets misappropriation because latter involved “extra element”— viz., breach of a fiduciary duty — not found in a copyright infringement claim); see also Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 217-19 (3d Cir.2002); Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404-05 (5th Cir.2000), and again inquire whether the particular state law at issue is the functional equivalent of a federal copyright infringement action, or instead is qualitatively different from a copyright infringement claim. See 17 U.S.C. § 301(a) (“preempting state causes of action which are premised on rights “equivalent to” copyright-holder’s exclusive rights of use set forth in § 106”); Stromback v. New Line Cinema, 384 F.3d 283, 301 (6th Cir.2004). Under the Data General test, the state-law accounting claim between co-owners of a copyrighted work, which sounds neither in contract nor tort, but in equitable principles of trust as between joint property owners, see, e.g., Bacon v. Bacon, 165 N.E. 485 (1929) (describing co-owner relationship as fiduciary in nature); supra note" }, { "docid": "4471273", "title": "", "text": "id. at 56. Focusing specifically on co-ownership claims, the court held that “plaintiffs claiming to be co-authors are time-barred three years after accrual of their claim from seeking a declaration of copyright co-ownership rights and any remedies that would flow from such a declaration.” Id. In so holding, the court explicitly distinguished the application of the three-year statute of limitations as applied to copyright infringement claims. The court stated that “[o]ur holding here does not disturb our previous rulings that a copyright owner’s suit for infringement is timely if instituted within three years of each infringing act for which relief is sought ...” Id. at 57 n. 8. The Merchant court relied on the Ninth Circuit’s decision in Zuill v. Shanahan, 80 F.3d 1366 (9th Cir.1996), the final decision of which had been published three weeks earlier, and parallels Merchant in several respects. At issue in Zuill was plaintiff musicians’ request for a declaration of co-ownership rights based on their alleged co-authorship of a well-known program designed to assist children to read. Affirming the lower court’s decision to bar the action on statute of limitations grounds, the court held that “claims of co-ownership, as distinct from claims of infringement, accrue when plain and express repudiation of co-ownership is communicated to the claimant, and are barred three years from the time of repudiation.” Id. at 1369. Finding that “[cjreation, rather than infringement was the gravamen of plaintiffs’ ownership claim,” the court held that the claim “did not accrue upon subsequent publication” of the work in question. Id. at 1371. As in Merchant, the Zuill decision barred plaintiffs’ ownership claims and the remedies that flowed therefrom. See id. at 1371 (barring “a declaratory judgment of co-ownership and the relief ancillary to such a claim”). These remedies include an accounting for profits by a co-owner, which arises from equitable doctrines such as unjust enrichment and general principles of co-ownership. See id. at 1369 (citing Oddo v. Ries, 743 F.2d 630, 632-33 (9th Cir.1984)); cf. Merchant, supra, 92 F.3d at 51 (noting that plaintiffs also filed a claim for an accounting). However, the court" }, { "docid": "16388097", "title": "", "text": "issue. See id. Nor does plaintiffs’ conversion action attempt to circumvent the copyright laws by asserting an equivalent right, rather it alleges conversion of royalties, not of the works themselves. See Dielsi v. Falk, 916 F.Supp. 985, 992 (C.D.Cal.1996). Defendant next contends that in their first and seventh claims, plaintiffs have pled causes of action arising under federal copyright law. Plaintiffs counter that they are asserting rights granted under state law. The first cause of action does not attempt to raise an infringement claim, but rather seeks resolution of the parties’ respective rights and duties. Ownership and title rights are matters of common-law and do not arise under the Copyright Act. See Oddo, 743 F.2d at 633. In essence, plaintiffs seek an accounting and determination of ownership rights, which are matters to be decided under state law. See id. The seventh cause of action pleads a claim for injunctive relief on the theory that Biafra will continue to exploit the materials for which Decay Music allegedly holds exclusive rights to control the exploitation unless he is enjoined. Biafra is a co-owner of all the works in dispute, either through his own authorship efforts or through his participation in the partnership. Mordam is a licensee of Biafra and thus its rights are derivative of Biafra’s. As a matter of law, in the Ninth Circuit, co-owners cannot infringe on each others’ copyrights; they can only violate rights allocated by contract. See Oddo, 743 F.2d at 633. Accordingly, the Court construes the seventh cause of action as a an effort to enjoin Biafra from violating a written agreement with Decay Music granting them exclusive rights to works for which he is an author, which therefore would bar him from exploiting the works independently. Whether Biafra ever validly assigned his rights in the works exclusively to Decay Music, thereby depriving himself of his ability as a joint author to exercise those rights independently, is a matter of contract law for the state courts to decide. III. CONCLUSION For the foregoing reasons, the Court GRANTS the motion and hereby REMANDS the case to the state" }, { "docid": "15073093", "title": "", "text": "109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.1984). The District of Columbia, Second, and Ninth Circuits have held and Congress must have intended that co-authors may claim for an accounting or otherwise proceed under common law principles since the Copyright Act makes no mention of how co-authors should enforce their rights to royalties as against each other. In sum, the Copyright Act does not preempt plaintiff’s claim for civil theft as Florida’s civil theft statute does not equate to the rights protected in the Copyright Act. 3. Count III — Constructive Trust Similarly, plaintiff’s claim for constructive trust is not preempted by the Copyright Act as courts have held that co-authors must have common law remedies for accounting, and the Copyright Act makes no such provision. See Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.1984). B. STATUTES OF LIMITATION 1. Counts I and III — Fraud and Constructive Trust Plaintiff admits that fraud and its derivative claims are governed by the four-year statute of limitation found in Florida Statutes § 95.11(3)(j) (1989). Plaintiff also correctly notes that Florida Statutes § 95.031(2) (1989) starts the four-year clock “running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3).” Fla.Stat. § 95.031(2) (1989). Therefore, the court must decide whether plaintiff discovered or should have discovered, through due diligence, the facts giving rise to this complaint more than four years ago. Defendant advances that plaintiff knew she was not receiving royalties as early as 1980. Plaintiff avers in her complaint that she did not “learn the truth”— discover that defendant had (allegedly) defrauded her — until 1988. While plaintiff knew more than four years ago that she was not receiving royalties, whether that knowledge constituted facts which revealed fraud remains a question of fact which this court" }, { "docid": "6669697", "title": "", "text": "to the Copyright Act, “[c]ivil actions seeking copyright remedies are barred unless ‘commenced within three years after the claim accrued.’ ” Estate of Burne Hogarth, 342 F.3d at 163 (quoting 17 U.S.C. § 507(b)). Goebel asserts that because Cambridge’s claims are preempted by the Copyright Act, the Act’s three-year statute of limitations is controlling. In contrast, Cambridge argues that even if the Copyright Act governs the case, the statute of limitations for its accounting and constructive trust claims must be based on state law. This court finds that the Copyright Act’s limitations period applies to the plaintiffs claims. In support of its argument, Cambridge relies on the Fifth Circuit decision in Goodman v. Lee. In that case, the court had held that there was exclusive original jurisdiction over the action because the plaintiffs “request for a.declaratory,judgment to establish co-authorship under the Copyright Act necessitated the application and interpretation of the copyright ownership provisions of the Act[,]” namely, the provisions defining a joint work and providing that “joint authors of a work are co-owners of a copyright in the work.” Goodman, 78 F.3d 1007, 1011 (5th Cir.1996) (describing its earlier decision regarding subject matter jurisdiction), cert. denied, 519 U.S. 861, 117 S.Ct. 166, 136 L.Ed.2d 108 (1996). Nevertheless, following a jury verdict establishing that the plaintiff was a joint author and therefore a co-owner of a copyright under the Copyright Act, the court determined that the plaintiffs claim for an accounting was “governed in all respects by state law.” Id. at 1012. In particular, the court found that the accounting claim was governed by the state statute of limitations rather than the statute of limitations set forth in section 507(b) of the Copyright Act. Id. at 1013. The court reasoned that the Copyright Act “provides that ‘[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued’ ” but that “this case does not present an action that is ‘maintained under the provisions’ of the Copyright Act” because the Act’s provisions do not “detail any action available to a" }, { "docid": "15073092", "title": "", "text": "17 U.S.C. § 506, this court cannot assume that the additional element of scienter in a civil theft cause, not present in a civil infringement cause under the Copyright Act, could not constitute an additional element that would preclude preemption. Moreover, in this case, the plaintiff co-author cannot bring an action under the Copyright Act’s civil infringement provisions, 17 U.S.C. § 501 et seq., as § 501 is inapplicable to plaintiff. While Congress intended to preempt the field of state law where the Copyright Act applies, the Copyright Act neglected to provide for remedies between co-authors. The Copyright Act makes specific reference to co-authors, 17 U.S.C. §§ 101, 201(a), but the Act does not mention them in Chapter 5, “Copyright Infringement and Remedies,” as co-authors cannot infringe. Neither does the Act include accounting or any other device as a remedy between co-authors; courts have had to append such a remedy through the use of equitable doctrines. See Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd on other grounds, — U.S. -, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); Weissmann v. Freeman, 868 F.2d 1313, 1317-18 (2nd Cir.), cert. denied, — U.S. -, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989); Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.1984). The District of Columbia, Second, and Ninth Circuits have held and Congress must have intended that co-authors may claim for an accounting or otherwise proceed under common law principles since the Copyright Act makes no mention of how co-authors should enforce their rights to royalties as against each other. In sum, the Copyright Act does not preempt plaintiff’s claim for civil theft as Florida’s civil theft statute does not equate to the rights protected in the Copyright Act. 3. Count III — Constructive Trust Similarly, plaintiff’s claim for constructive trust is not preempted by the Copyright Act as courts have held that co-authors must have common law remedies for accounting, and the Copyright Act makes no such provision. See Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.1984). B. STATUTES OF LIMITATION 1. Counts I and III —" }, { "docid": "16764165", "title": "", "text": "for trade secrets misappropriation because latter involved “extra element”— viz., breach of a fiduciary duty — not found in a copyright infringement claim); see also Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 217-19 (3d Cir.2002); Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 404-05 (5th Cir.2000), and again inquire whether the particular state law at issue is the functional equivalent of a federal copyright infringement action, or instead is qualitatively different from a copyright infringement claim. See 17 U.S.C. § 301(a) (“preempting state causes of action which are premised on rights “equivalent to” copyright-holder’s exclusive rights of use set forth in § 106”); Stromback v. New Line Cinema, 384 F.3d 283, 301 (6th Cir.2004). Under the Data General test, the state-law accounting claim between co-owners of a copyrighted work, which sounds neither in contract nor tort, but in equitable principles of trust as between joint property owners, see, e.g., Bacon v. Bacon, 165 N.E. 485 (1929) (describing co-owner relationship as fiduciary in nature); supra note 25, is not preempted because it is not the qualitative equivalent of a copyright infringement claim under the Copyright Act. Further, the Cambridge state-law accounting claim requires an extra element not found in a copyright infringement case: an existing equitable trust relationship between the parties. In Data General, the relationship was fiduciary; here, the relationship is joint ownership of property giving rise to an equitable duty to provide an accounting of profits. The Copyright Act does not preempt the state-law accounting claim, and thus it cannot be dismissed on preemption grounds. Ill CONCLUSION In order to bring the Cambridge state-law cause of action under the Copyright Act’s three-year limitations provision, the majority announces a blanket jurisdictional rule which threatens to draw into the federal courts many copyright-related claims over which Congress deliberately intended to give the state courts concurrent jurisdiction. As the state courts are perfectly competent to interpret Copyright Act definitions that may be tangentially relevant to their disposition of state-law causes of action, the mere possibility that they may need to consult those" }, { "docid": "4471336", "title": "", "text": "declaration of sole copyright ownership, an accounting for profits, antitrust remedies under the Sherman and Clayton Acts, and denied as to plaintiffs copyright infringement and Lan-ham Act claims. The Court also dismisses plaintiffs claims as to corporate defendants RUT, RUF, and RUH, and as to individual defendants Schoenfeld, Mackintosh and Geffen. SO ORDERED. . The Court notes that while plaintiff was the makeup artist for the first Cats company (the \"National I” company), she was not chosen as the makeup artist for the National II Company, which began performances in 1985. (Compl-¶¶ 69-71.) The Complaint further notes that, in 1991, plaintiff worked on the Cats production in Mexico, purportedly because producers in Mexico requested the musical’s \"original makeup designer.” (Id. ¶ 74.) . Cats is still running in the United States, but it is scheduled to close in September 2000. . The Complaint does not specify the party with whom plaintiff entered into the contract, and the Court has not been provided with any contract. . These services include (i) teaching incoming actors their Designs, (ii) preventing incumbent actors from altering the Designs, and (iii) keeping actors’ makeup in stock. (Comply 52.) . All defendants except Polygram Video have joined the motion. These defendants are hereinafter referred to as \"defendants.\" . A claim for accounting is a remedy premised on a determination of co-ownership because the duty to account for profits “presupposes a relationship as co-owners of the copyright.” Weber v. Geffen Records, 63 F.Supp.2d 458, 464 (S.D.N.Y.1999). . The legislative history of the Act indicates that allowing related works to be registered together was designed to avoid cases where \"the technical necessity for separate application and fees has caused copyright owners to forego copyright altogether.” H.R.Rep. No. 94-1476, at 154 (1976), U.S.Code Cong. & Admin.News 1976, 5659. . Defendants’ \"joint work” argument is considered with respect to plaintiff’s infringement claims, infra. . The Court notes that plaintiff’s claim for accounting is asserted under state as well as federal law. Section 301 of the Copyright Act expressly preempts state law claims that are equivalent to claims \"falling within the scope”" }, { "docid": "16388094", "title": "", "text": "avoidance of defenses.” See id. (quoting Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).) Nor may affirmative defenses alleged by defendant be considered. See id. In the Ninth Circuit, federal subject matter jurisdiction exists in copyright cases if one of three grounds is satisfied: (1) the claim “is for a remedy expressly granted by the [Copyright] Act”; (2) the complaint “asserts a claim requiring construction of the Act”; or (3) the case “presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the case.” See id. (quoting T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964)). “Contract questions that depend on common law or equitable principles belong in state court.” Dolch v. United Cal. Bank, 702 F.2d 178, 180 (9th Cir.1983) (addressing the validity of an assignment). Co-owners of a copyright, and their licensees, cannot be liable to one another for infringement of that copyright as a matter of law. See Oddo v. Ries, 743 F.2d 630, 632 (9th Cir.1984). “[E]ach co-owner has an independent right to use or license the use of the copyrights.” See id. at 633. An action for an accounting or determination of ownership as between alleged co-owners is founded in state law and does not arise under the copyright laws. See id. These rules apply whether co-ownership arises from joint authorship or through co-ownership of rights through a partnership. See id. II. DISCUSSION All of the parties to this action are California domieilaries and so federal subject matter jurisdiction will subsist only if there is a federal question. Plaintiffs argue that the action must be remanded because the claims are all based in state law causes of action and because defenses based in federal law are insufficient to confer subject matter jurisdiction. Defendant first argues that the doctrine of complete preemption makes this a federal case. The fact that certain copyright provisions, such as 17 U.S.C. § 204, which requires that any license granting exclusive rights to another must be in writing," } ]

[ { "docid": "4709655", "title": "", "text": "threshold requirement of timely filing for a claim to be “allowed” and thus eligible for payment. The trustee’s argument also ignores the fact that in § 502 of the Bankruptcy Code, the section expressly governing the disallowance of claims, eight specified grounds for disallowance are set forth and untimeliness is not among them. Moreover, § 501 of the Bankruptcy Code addresses the conditions for the filing of proofs of claim without imposing a timeliness requirement. Therefore, to the extent Rule 3002 suggests that a late filed claim must be disallowed, it is inconsistent with the text of §§ 726, 502, and 501. Rule 3002 was derived from the former Rule 302, applicable under the Bankruptcy Act of 1898, eh. 541, 30 Stat. 544. Section 57(n) of the former Bankruptcy Act specifically disallowed claims not filed within six months after the first meeting of creditors, see 11 U.S.C. § 93(n) (1976), and Rule 302(a) accommodated this statutory requirement by providing that a claim had to be filed within the six-month period in order to be allowed. The current Bankruptcy Code contains no provision comparable to former § 57(n) disallowing late claims. With its statutory underpinning removed and because it now contravenes § 726(a) and other Code provisions, a rule of procedure that disallows claims for untimeliness cannot stand. See In re Gullatt, 164 B.R. 279, (Bankr.M.D.Tenn.1994); In re Hausladen, 146 B.R. 557, 559-61 (Bankr.D.Minn.1992) (both discussing tensions between Rule 3002 and the Bankruptcy Code). While we do not accept the trustee’s argument based on Bankruptcy Rule 3002, we note that even if we did, it would not lead to the result reached by the bankruptcy and district courts. A claim that is disallowed under Rule 3002 would have to be completely expunged, not simply subordinated. The courts’ subordination of the IRS’s “disallowed” claim to the third tier of distribution is also inconsistent with subsection (a)(3)’s identification of claims to be paid under its proviso as “allowed” claims. Neither the trustee nor the lower courts explain how their concept of allowance can be applied to exclude as “disallowed” a claim from subsection" } ]

[ { "docid": "13698291", "title": "", "text": "step and for confusing what really is a barred claim with a disallowed claim (and vice versa). Moreover, reliance on § 726 is misplaced, especially in a Chapter 13 case. Initially, § 726 applies only to Chapter 7 cases and thus is inapplicable to the case at bar. However, the court in Hausladen re- lied, without elaboration, on § 726 to make a statutory construction argument. The court said that § 726 is “a clear illustration of the principal [sic]: while treatment of a claim may be dependent on its timeliness, allowance is not.” 146 B.R. at 560. Essentially, the argument, at least as elaborated upon by other courts, appears to be that § 726(a)(2)(C) and § 726(a)(3), through the references to “timely filed” as well as to “tardily filed” proofs of claim, are evidence that the Code does indeed contemplate the allowance of tardily filed claims, which conflicts with Rule 3002. Section 726 and Rule 3002 are then construed to avoid this potential conflict: Rule 3002 merely classifies claims for purposes of distribution under § 726. Finally, these courts argue, since Rule 3002(c) by its terms applies to both Chapter 7 and Chapter 13, the interpretation necessitated by § 726 should also hold true for Chapter 13 cases as well as Chapter 7 cases. We disagree. Rule 3002 cannot be read to mean anything other than a late-filed claim cannot be allowed. Therefore, either the Rule is invalid or it must be reconciled with the Code. Although in Hausladen the court’s attempt at such reconciliation fails, there is another way. The reasoning in In re Gullatt regarding § 726 is persuasive. See 169 B.R. 385, 389-90 (M.D.Tenn.1994). The starting point is the long-standing general principle that late-filed claims are not allowed, a principle that has been a part of bankruptcy jurisprudence for quite some time. Id. at 389. In that light, § 726, insofar as it purports to allow late-filed claims, can be seen as an exception to that general principle. As the court in Gullatt noted, the “primary purpose of § .726(a)(2)(C) is to determine the priority of" }, { "docid": "5932191", "title": "", "text": "(siding with Zimmerman over Hausladen); In re Parr, 165 B.R. 677, 681-83 (Bankr.N.D.Ala.) (siding with Zimmerman over Hausladen and also citing a number of other recent supporting decisions); 8 Collier on Bankruptcy ¶ 3002.02[1] (Lawrence P. King ed., 15th ed. 1994) (“Rule 3002 complements §§ 501 and 502 of the Code”). Contra Haus-laden, 146 B.R. at 557 (“section 502 and Rule 3002 are not complementary but independent”). C. Contrary to Hausladen’s reading of the legislative history, this Court finds no indication that the removal from the Code to the Rules of the provision disallowing tardy claims signalled a major change in bankruptcy law. Under the previous Bankruptcy Act, § 57(n) specifically disallowed late filed claims. Former Bankruptcy Rule 302(e) set the time limit for filing Chapter 7 and Chapter 13 claims at 6 months. See Advisory Committee Notes following Rule 3002(c). The Advisory Committee Notes following Rule 3002(c) make clear that the new Rule 3002(e) was simply adapted from former Rule 302(e), with the minor change in the length of time provided for filing. As explained in In re Bailey, 151 B.R. 28 (Bankr.N.D.N.Y.1993), the absence of specific statutory disallowance of tardy claims did not signal a change from the previous law barring tardy claims. Rather, the legislative history of § 501 shows that specific procedural details under the Code were intentionally left for the Federal Rules of Bankruptcy Procedure: “The Rules ... will set the time limits, the form, and the procedure for filing, which will determine whether claims are timely or tardily filed.” Id. at 31, citing H.R.Rep. No. 595 95th Cong., 1st Sess. 351 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6307; see also Historical and Revision Notes following 11 U.S.C. § 501. Further legislative history states that in modernizing the bankruptcy law, “nearly all procedural matters [formerly incorporated in the provisions of the Act] have been removed and left to the Rules of Bankruptcy Procedure.” Bailey, 151 B.R. at 32, (citing H.R.Rep. No. 595, 95th Cong., 1st Sess. 449 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6405). What the legislative history does" }, { "docid": "215272", "title": "", "text": "first date set for the meeting of creditors called pursuant to [Code] § 341.... ” Use of the term “shall” indicates that in order to participate in a Chapter 13 distribution a creditor must file a proof of claim within the time limit set out in the Rule. In re Nohle, supra, 93 B.R. at 14. Code § 502(a) provides that a claim, proof of which is filed under Code § 501, will be deemed allowed unless a party in interest objects. The basis upon which such a party may object are provided in Code § 502(b). Untimeliness in filing is not one of them. However, reading these Code sections together with Fed.R.Bankr.P. 3002(a) and (c) this Court concludes that in order for an unsecured creditor’s claim to meet the threshold requirement for allowance under Code § 502(a), a proof of claim must be filed under Code § 501 which comports with Fed.R.Bankr.P. 3002(a) and (c). Failure to meet these simple requirements will result in the claim being disallowed, or more appropriately expunged. Cf. In re Wilson, supfa, 90 B.R. 491 (impliedly holding that a Chapter 13 creditor’s tardy proof of claim was a complete nullity thereby validating the clerk’s refusal to accept such proof of claim for filing after the bar date had passed). Since Erie’s proof of claim did not conform with the time limit prescribed by Rule 3002(c) and the Court is without discretion to extend the period, see In re King, 90 B.R. 155, 158 (Bankr.E.D.N.C.1988) (citing Maressa v. A.H. Robbins Co., Inc., 839 F.2d 220, 221 (4th Cir.), cert. denied, A.H. Robbins Co., Inc. v. Maressa, 488 U.S. 826, 109 S.Ct. 76, 102 L.Ed.2d 53 (1988)); see also Fed.R.Bankr.P. 9006(b)(3), its claim must be expunged. The Hausladen court finds that the current practice of disallowing late filed claims resulted from improperly carrying over pre-code law into present practice. Hausladen, supra, 146 B.R. at 559. That court observes that under the Bankruptcy Act, late claims were explicitly disallowed: “[s]ection § 57(n)of the Act provided that ... ‘[cjlaims which are not filed within six months after the" }, { "docid": "23232413", "title": "", "text": "the period prescribed under Fed. R.Bankr.P. 3002(c) as a condition precedent to allowance. Bailey, 151 B.R. at 31, fn. 2. While Fed. R.Bankr.P. 3002 does not explicitly state that late claims are barred, it does make timely filing a prerequisite to allowance. Hausladen’s attempt to ignore this aspect of the rule flies in the face of the rule’s presumptive validity. VI. The Semantics of § 502 and Fed.R.Bankr.P. 3002. The second error which the Hausla-den court made resulted from an unfortunate double meaning which bankruptcy courts and practitioners commonly attach to the term “disallowed.” Although that term appears nowhere in § 502, it is common to describe a claim that falls within § 502(b)’s enumerated exceptions as being “disallowed.” Likewise, that term has been used with respect to claims that cannot be allowed because they are not filed “in accordance with” Fed.R.Bankr.P. 3002. However, the process of claims allowance involves several steps, and “disallowance” under these two provisions describes different events. The first step in the process is filing a claim. The substantive rights of various parties to file claims are found in § 501; the procedure for doing so is located in Fed.R.Bankr.P. 3002. Once filing is accomplished, the substance of the claim is considered under § 502. A claim may not be allowed because of defects at any of these steps. Hausladen, however, collapses the process into a single step: Section 502 ... sets out eight specific grounds for disallowing claims. Tardy or late filing is not one of them. The statute says what the statute means: “the court ... shall allow ... claim[s] ... except ...” 11 U.S.C. § 502(b) (emphasis added). The words are clear; “lateness is not a ground for disallowance under section 502 of the Code.” In re Horner, 1991 WL 353297 (Bankr.N.D.Ill. Sept. 21, 1991) (dicta); J. Keith M. Lundin, Chapter 13 Bankruptcy, § 7.24 at 7-59 (Sept. 1992 galley proof). Hausladen, 146 B.R. at 559. This statement is accurate to the extent it describes the decision-making process under the specific provisions of § 502. But, like an answer to a complaint, whether" }, { "docid": "11562108", "title": "", "text": "but rather is the assertion of a new distinct daim. The IRS argues that under a reading of the applicable Bankruptcy Code sections and accompanying rules, untimely filing of a claim is not grounds for disallowance. The IRS relies on [In re Hausladen, 146 B.R. 557 (1992)], an en bane decision from the bankruptcy court in Minnesota which essentially concludes that Congress did not intend to include tardiness as a grounds for disallowance of claims. The court in Hausladen reasoned that 11 U.S.C. § 502 provides the only grounds for disallowance of claims. Because untimeliness is not among the enumerated grounds, a claim should not be disallowed on that basis. The court further reasoned that the time deadlines established in Fed. R.Bankr.P. 3002(c) merely affect the treatment of a tardily filed claim and not its allowability. Hausladen holds that a Chapter 13 plan may treat late-filed claims differently from timely filed ones, but that a late-filed claim should not be disallowed merely because it was filed outside the time established in Fed.R.Bankr.P. 3002(c). Several other courts have followed the reasoning in Hausladen and have reached similar conclusions. Directly contrary to the result reached in Hausladen is a decision rendered en banc by a Michigan bankruptcy eourt[,] In re Zimmerman. ... [T]o analyze the allowability of a claim, a court should engage in a two-step process: First, the Court should determine whether the claim is properly filed under 11 U.S.C. § 501 and Fed.R.Bankr.P. 3002(e) and, second, whether there is a substantive ground for disallowance under 11 U.S.C. § 502(b).... The court in Zimmerman also recognized important policy considerations in reaching its decision. Claims bar dates are a necessary and integral part of a Chapter 13 case. Such dates provide the debtor and creditors with finality. This Court agrees with, and adopts, the reasoning and conclusions reached by the court in Zimmerman. Fed.R.Bankr.P. 3002(c) establishes a bar date for filing certain proofs of claim in chapter 7 and chapter 13 cases. That deadline would be rendered meaningless if untimeliness were not a grounds for disallowance. Fed. R.Bankr.P. 3002(a) makes clear that" }, { "docid": "23232398", "title": "", "text": "be disallowed?” Hausladen, 146 B.R. at 558. That panel concluded that a claim filed after the 90-day deadline would not be disallowed. Instead, the court posited that the timeliness of a claim relates only to the claim’s priority. These conclusions were derived from the Minnesota bankruptcy court’s interpretation of § 502 of the Code. Section 502, “Allowance of claims or interest,” states: (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects. (b) [I]f such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim ... and shall allow such claim ... except to the extent that — [the section continues by enumerating eight exceptions]. 11 U.S.C. § 502. The Minnesota court focused closely upon the use of the word “except” used in § 502(b). The court stated that the eight enumerated items following the phrase “except to the extent that” are the only reasons a claim may be disallowed under the Code. Because lateness is not an enumerated ground, the court concluded that a claim may not be disallowed for that reason. Hausladen, 146 B.R. at 559. The Minnesota court read Fed. R.Bankr.P. 3002 to be consistent with its interpretation of § 502. Hausladen, 146 B.R. at 560, n. 5. Rule 3002 states: (a) NECESSITY FOR FILING. An unsecured creditor or an equity security holder must file a proof of claim or interest in accordance with this rule for the claim or interest to be allowed.... (c) TIME FOR FILING. In a chapter 7 liquidation, chapter 12 family farmer’s debt adjustment, or chapter 13 individual debt adjustment case, a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code.... The court stated that Rule 3002 does not explicitly require filing within the 90-day period for the claim to be allowed, although the court recognized that such an interpretation is implied by the rule. Therefore, it concluded," }, { "docid": "18597117", "title": "", "text": "a proof of claim is presumptively allowed, absent the filing of an objection by a party in interest. § 502. Allowance of claims or interests. (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects. (b) ... if such objection to a claim is made, the court, after notice and a hearing ... shall allow such claim in such amount except to the extent that— 11 U.S.C. § 502 (emphasis added). Section 502 enumerates eight specific grounds for disallowing claims. The court in Hausladen noted that tardy or late filing is not one of the stated grounds for disallowance. \"The words are clear; lateness is not a ground for disallowance under section 502 of the Code.’ \" Hausladen, 146 B.R. at 559, citing In re Horner, 1991 WL 353297 (Bankr.N.D.Ill. Sept. 21, 1991) (dicta); Judge Keith M. Lundin, Chapter 13 Bankruptcy, § 7.24 at 7-59 (Sept. 1992 galley proof). The Hausladen court specifically concluded that under the statute, an objection predicated upon late filing required the court to allow the claim. Id. at 559-60. . This Court is aware of the compelling en banc opinion of In re Zimmerman, 156 B.R. 192 (Bankr.W.D.Mich.1993), which rejected the reasoning in Hausladen. However, the Zimmerman court did recognize that Fed.R.Bankr.P. 3002 does not explicitly state that late claims are barred. Zimmerman, p. 12, July 1, 1993. It is interesting to note, however, that the Zimmerman court failed to address the seminal case of In re Century Boat discussed infra, a recent Sixth Circuit decision which allowed a late filed claim by the IRS. . See United States v. Cardinal Mine Supply, Inc., 916 F.2d 1087 (6th Cir.1990). In re Century Boat Co., 986 F.2d 154 (6th Cir.1993) (Discussed infra). . The Trustee asserts that Section 726(a)(2)(c) provides an exception only where the claimant did not have notice or actual knowledge. . The Sixth Circuit in" }, { "docid": "5932188", "title": "", "text": "law professors, and governmental agencies from across the country. Id. The Rules were finally recommended by the Judicial Conference of the United States and transmitted to Congress with the express approval of the United States Supreme Court. After three months time in which Congress could act to change the Rules if they saw fit, the Bankruptcy Rules took effect on August 1,1988. Following the enactment of Pub.L. 98-353, on July 10, 1984, wherein Congress responded to the decision of Northern Pipeline, the Advisory Committee on the Bankruptcy Rules minutely re-examined the Rules to conform them to the new jurisdictional scheme. Again public hearings were held at various places across the country, the Rules as amended were submitted to the Rules and Practice Committee of the Judicial Conference, the Supreme Court, and to the Congress. No changes were made and the Revised Rules took effect August 1, 1987. B. The “major change in the underlying statute” to which Hausladen refers is the relocation from the Bankruptcy Code to the Bankruptcy Rules of the provision disallowing tardy claims. Under the old Bankruptcy Act, § 57n disallowed late filed claims. Under the new Bankruptcy Code, §§ 501 and 502 do not specifically bar allowance of creditors’ late filed claims; instead, late claims are disallowed through the procedural mechanism of Rule 3002. In re Zimmerman, 156 B.R. 192, 197 (Bankr.W.D.Mich.1993) (en banc). Hausladen's conclusion that §§ 501 and 502 “explicitly” require courts to allow late claims, 146 B.R. at 560, is based upon the following reasoning. Section 502 provides: Allowance of claims or interests. (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects. (b) ... if such objection to a claim is made, the court, after notice and a hearing ... shall allow such claim ... except to the extent that — [eight exceptions which do not include late filing.] Because late filing is not listed as an exception under § 502(b), Hausladen concludes that late filed claims must be allowed. Id. at 599-60. What this analysis" }, { "docid": "13698290", "title": "", "text": "at 198-99. A barred claim differs from a disallowed claim, even though the terms are used interchangeably. A claim is barred, that is, not even considered under § 502, if it fails to comply with § 501’s procedural requirements, including the requirement that a claim must be timely filed (as is set forth in Rule 3002). In contrast, only a non-barred claim can be disallowed. That is, § 502 only applies once § 501 has been satisfied, and § 502 states the substantive grounds to disallow a properly and timely filed proof of claim. The court in Hausladen focused solely on disallowance under § 502(b) in concluding that since timeliness is not a listed ground for disallowance, an untimely filed claim must be “deemed allowed.” Hausladen, 146 B.R. at 559-60. This analysis ignores the requirement of § 502(a) that the conditions of § 501 must be satisfied before § 502(b) is applicable. This is what the court in Zimmerman meant when it criticized the court in Hausla-den for collapsing the several steps into just one step and for confusing what really is a barred claim with a disallowed claim (and vice versa). Moreover, reliance on § 726 is misplaced, especially in a Chapter 13 case. Initially, § 726 applies only to Chapter 7 cases and thus is inapplicable to the case at bar. However, the court in Hausladen re- lied, without elaboration, on § 726 to make a statutory construction argument. The court said that § 726 is “a clear illustration of the principal [sic]: while treatment of a claim may be dependent on its timeliness, allowance is not.” 146 B.R. at 560. Essentially, the argument, at least as elaborated upon by other courts, appears to be that § 726(a)(2)(C) and § 726(a)(3), through the references to “timely filed” as well as to “tardily filed” proofs of claim, are evidence that the Code does indeed contemplate the allowance of tardily filed claims, which conflicts with Rule 3002. Section 726 and Rule 3002 are then construed to avoid this potential conflict: Rule 3002 merely classifies claims for purposes of distribution under" }, { "docid": "13698281", "title": "", "text": "that squarely rejects Hausladen and does not allow a late-filed claim. Only a handful of eases have followed Hausladen and allowed late-filed claims in a Chapter 13 context. At least one court has allowed a late-filed claim in Chapter 13 on the basis of a lack of proper notice, while rejecting Hausladen in dicta. See In re Anderson, 159 B.R. 830, 836 (Bankr.N.D.Ill.1993) (following Cardinal Mine Supply and its progeny in a Chapter 13 context). E. The Zimmerman et al. View A number of courts have rejected Hausla-den in the Chapter 13 context and have “barred,” “not allowed,” or “disallowed” late-filed claims. The leading case is In re Zimmerman, 156 B.R. 192 (Bankr.W.D.Mich.1993) (en banc). For the reasons set forth below, the Court declines to follow the analysis and decision of the court in Hausladen and instead accepts and adopts the reasoning and result of the court in Zimmerman. First, this Court agrees with the court in Zimmerman. The court in Hausla-den erred in its purported harmonization of § 501, § 502, and Rule 3002. The correct interplay among these provisions is set forth by the court in Zimmerman and can be summarized as follows; (1) § 501 creates the substantive right to file a claim and identifies the parties holding that right; (2) § 502 provides for analysis of the merits of a claim; (3) § 502 states that a claim, proof of which is filed in accordance with § 501, is deemed allowed, unless a party in interest objects; (4) thus, filing under § 501 is a prerequisite to being deemed allowed under § 502; (5) § 501 contemplates a procedural requirement of timely filing, as § 501(b) and (c) discuss who may file in terms of whether or not someone else has timely filed; (6) Rule 3002 provides the procedural answer to when a claim is timely filed; (7) therefore, § 501 incorporates Rule 3002; and (8) since § 501 incorporates Rule 3002 and compliance with § 501 is a prerequisite or condition precedent to allowance under § 502, then compliance with Rule 3002 and its timeliness" }, { "docid": "18770304", "title": "", "text": "of claim against the estate within 90 days after the date set for the meeting of creditors. The Court may extend the period for the United States to file a claim, but only on a motion made “before the expiration of such period.” FRBP 3002(c)(1). FRBP 9006(b)(3) provides that the time limits of Rule 3002(c) may be enlarged by the Court “only to the extent and under the conditions stated” in the rule. Thus, the Court has no discretion to grant the IRS a retroactive extension to timely file its claim. In re Global Precious Metals Inc., 143 B.R. 204, 205 (Bankr.N.D.Ill.1992). However, the fact that IRS’s claim is untimely does not resolve the issue of whether the claim is entitled to payment from the estate. Allowance of claims is governed by § 502 of the Code which states: (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects. (b) ... if such objection to a claim is made, the court, after notice and hearing ... shall allow such claim ... 11 U.S.C. § 502. Section 502 then provides eight specific grounds for disallowing claims. Late filing is not one of them. In addition, § 726(a)(3) of the Code makes specific provisions for payment of an “allowed unsecured claim proof of which is tardily filed.” Sections 502 and 726 sanction the allowance of untimely claims, and insofar as Rule 3002(c) conflicts with these sections and purports to require disallowance of untimely claims it cannot be enforced. In re Hausladen, 146 B.R. 557, n. 5 (Bankr.D.Minn.1992); U.S. v. Cardinal Marine Supply Inc., 916 F.2d 1087, 1089 (6th Cir.1990). ‘We cannot have a statute that specifically allows payment of tardily filed claims and rules that prohibit their fil ing.” Id. Thus, the claim of the IRS is deemed allowed, but untimely. In this case, the IRS filed a priority claim under § 507 for pre-petition taxes. Having determined that the IRS has an allowed claim, the Court must now determine whether the claim retains its priority" }, { "docid": "18518302", "title": "", "text": "properly reflect the balance between substantive and procedural law. See Hanna, 380 U.S. at 471, 85 S.Ct. at 1144; Sibbach, 312 U.S. at 14, 61 S.Ct. at 426-27. Consequently, we should invalidate a Bankruptcy Rule only if it is plainly inconsistent with the Bankruptcy Code or if it transgresses the Constitution. See Hanna, 380 U.S. at 471, 85 S.Ct. at 1144; Cisneros v. United States (In re Cisneros), 994 F.2d 1462, 1465 (9th Cir.1993); cf. FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125, 132 (2d Cir.1992) (harmonizing two statutes with arguably inconsistent requirements when possible). The majority impliedly concedes that Bankruptcy Rule 3002 is not inconsistent with 11 U.S.C. §§ 501-502 (1988) (amended 1994). Both Sections are silent as to a bar date or the ability of a creditor to file an untimely claim. Section 501, however, eon- templates a procedural requirement of timely filing by expressly referring to untimely claims. The legislative history of § 501 further supports the existence of a timeliness requirement. Section 501, therefore, incorporates Bankruptcy Rule 3002 so that timeliness is a prerequisite to allowance of a claim under § 502. Chavis, 47 F.3d at 823; In re Tucker, 174 B.R. 732, 739 (Bankr.N.D.Ill.1994); Gullatt v. United States (In re Gullatt), 169 B.R. 385, 387 (M.D.Tenn.1994); In re Zimmerman, 156 B.R. 192, 195-96 (Bankr.W.D.Mich.1993) (en banc); see also 8 Collier on Bankruptcy ¶ 3002.02[1], at 3002-4 (Lawrence P. King ed., 15th ed. 1995) (noting that Rule 3002 complements Sections 501 and 502). The Second Circuit, in addition to the majority, relied on Section 726 rather than Sections 501 or 502 to invalidate Rule 3002. See Vecchio, 20 F.3d at 557-58. Unlike the majority or the Second Circuit, the Ninth Circuit invalidated the bar date based on its absence from §§ 501 and 502. See Pacific Atl. Trading, 33 F.3d at 1067. Noting that untimeliness was not listed in § 502(b) as a reason for disallowing a claim, the Ninth Circuit considered the bar date’s absence telling because § 57n of the Bankruptcy Act had barred untimely proofs of claims. Id. at 1066-67." }, { "docid": "1083436", "title": "", "text": "constitutional and statutory constraints. In re Zimmerman, 156 B.R. 192, 196 (Bankr.W.D.Mich.1993); Burlington N. Railroad v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987). Internal Revenue Service contends that all filed proofs of claim are filed pursuant to § 501 and thus allowed by § 502(a) unless disallowed under subsection (b). This argument overlooks the limiting provision of § 502(a), “proof of which is filed under § 501 of this title,” which includes a timely filing requirement as established by FRBP 3002(c). Under the IRS argument, all un timely filed proofs of claim are allowed because § 502(b) does not disallow a claim that is filed after the bar date. This interpretation creates a conflict between 11 U.S.C. § 502(b) and FRBP 3002. Contrary to the Hausladen, analysis, the claims allowance process involves several steps. The first step in the process is filing a claim. The substantive rights of various parties to file claims are found in § 501; The procedure for doing so is located in FED.R.BANKR.P. 3002. Once filing is accomplished, the substance of the claim is considered under § 502. A claim may not be allowed because of defects at any of these steps. Zimmerman, 156 B.R. at 198. This analysis of the claims allowance process makes §§ 501 and 502 and FRBP 3002 complimentary, rather than contradictory. Section 501 defines the substantive aspects of the right to file a claim, while FRBP 3002 establishes procedural guidelines for filing. The substantive grounds for denying allowance of a properly filed claim are contained in § 502. Consequently, the procedural rule does not make or amend substantive law. See, 28 U.S.C. § 2075. In re Hausladen, 146 B.R. 557 (Bankr.D.Minn.1992), incorrectly analyzed the claims allowance process in concluding that the time limitation in FRBP 3002 conflicts with 11 U.S.C. § 502. That case confuses a proof of claim not allowed because it is not filed as required by § 501 with a claim disallowed by the grounds set out in § 502. Hausladen failed to adequately consider that FRBP 3002 procedurally implements filing a claim under" }, { "docid": "3716249", "title": "", "text": "MEMORANDUM KEITH M. LUNDIN, Bankruptcy Judge. The question presented is whether a tardy claim is allowable in a Chapter 13 case. Late filing does not require disallowance. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I Connie and Sandra Gullatt filed Chapter 13 on February 11, 1993. Pursuant to Bankruptcy Rule 3002(c), timely proofs of claim were due before June 16, 1993. On August 16, 1993, the Veterans’ Administration filed proof of an unsecured claim for $13,966.95. The debtors objected to allowance of the V.A.’s claim on the ground it was untimely. II Chief Judge George C. Paine II of this District recently held that a claim in a Chapter 13 case was not disallowed solely because proof was filed after the deadline fixed by Rule 3002(c). In re Sullins, 161 B.R. 957 (Bankr.M.D.Tenn.1993). This conclusion was based on the reasoning of In re Hausladen, 146 B.R. 557 (Bankr.D.Minn. 1992). These debtors and the standing Chapter 13 trustees in this district urge departure from Sidlins based on the reasoning of In re Zimmerman, 156 B.R. 192, 197 (Bankr.W.D.Mich.1993), In re Bailey, 151 B.R. 28, 32 (Bankr.N.D.N.Y.1993), and other decisions contrary to Hausladen. At least five arguments from statutory interpretation support the outcome in Sullins: 1. No provision of the Bankruptcy Code disallows an untimely claim. Section 57n of the former Bankruptcy Act specifically disallowed late claims. Section 502 of the Code mandates that “the court ... shall alloiu ... claim[s]” (emphasis added) unless an enumerated ground for disallowance applies. Late filing is not enumerated. The deletion of § 57n and the enactment of a different statutory scheme in § 502(b) signalled a change in the treatment of late-filed claims in bankruptcy cases under the Code. 2. Sections 501(b) and (c) have vitality only if untimely filed claims are allowable. 11 U.S.C. § 501(a) states (permissibly) that “a creditor ... may file a proof of claim.” (emphasis added). Section 501(b) and (c) permit the debtor, the trustee or a co-debtor to file a proof of claim on behalf of a creditor, “if a creditor does not timely" }, { "docid": "5932189", "title": "", "text": "claims. Under the old Bankruptcy Act, § 57n disallowed late filed claims. Under the new Bankruptcy Code, §§ 501 and 502 do not specifically bar allowance of creditors’ late filed claims; instead, late claims are disallowed through the procedural mechanism of Rule 3002. In re Zimmerman, 156 B.R. 192, 197 (Bankr.W.D.Mich.1993) (en banc). Hausladen's conclusion that §§ 501 and 502 “explicitly” require courts to allow late claims, 146 B.R. at 560, is based upon the following reasoning. Section 502 provides: Allowance of claims or interests. (a) A claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects. (b) ... if such objection to a claim is made, the court, after notice and a hearing ... shall allow such claim ... except to the extent that — [eight exceptions which do not include late filing.] Because late filing is not listed as an exception under § 502(b), Hausladen concludes that late filed claims must be allowed. Id. at 599-60. What this analysis ignores is that proper filing of a claim under § 501 is a condition precedent to consideration under § 502. Zimmerman, 156 B.R. at 195. Section 502(a) refers to a claim “proof of which is filed under section 501”; section 502(b) instructs a court to “allow such claim” if it does not come within one of the listed exceptions. If a claim is not properly filed under § 501, a court need not examine the exceptions set out in § 502(b). Section 501 states inter alia that a creditor may file a proof of claim, and that if the creditor fails to timely file, proof of claim may be filed by other specified parties. Sections 501 and 502 are therefore consistent with Rule 3002’s disallowance of late filed claims. This court agrees with Zimmerman ’s conclusion that Rule 3002 is a procedural complement to §§ 501 and 502, rather than Hausladen’s conclusion that Rule 3002 is a conflicting substantive requirement. Zimmerman, 156 B.R. at 197; see also In re Messics, 159 B.R. 803 (Bankr.N.D.Ohio 1993)" }, { "docid": "23232403", "title": "", "text": "that case is correctly decided. Only two cases to date have been decided on similar facts. General Motors Acceptance Corp. v. Judkins (In re Judkins), 151 B.R. 553 (Bankr.D.Colo.1993), follows Hausladen, while In re Bailey, 151 B.R. 28 (Bankr.N.D.N.Y.1993) takes the opposite view. Other cases not involving the factual scenario now before the court have also cited Hausladen favorably. Two such cases decided in the context of late claims filed by the IRS in chapter 7 cases are Lastra v. Blood Services Program of the American Red Cross (In re Corporacion de Servicios Medico-Hospitalarios de Fajardo, Inc.), 149 B.R. 746 (Bankr.D.P.R.1993), and In re Rago, 149 B.R. 882 (Bankr.N.D.Ill.1992). In re Stoecker, 151 B.R. 989 (Bankr.N.D.Ill.1993) also involved a late claim filed by the IRS in a chapter 7 ease but declined to follow Hausladen's reasoning. Other courts have cited Hausladen in passing but have failed to reach the Hausladen issue because of defects in the notice given to the creditor. See Internal Revenue Service v. Barton (In re Barton), 151 B.R. 110 (Bankr.W.D.Mich.1993); Internal Revenue Service v. Cole (In re Cole), 146 B.R. 837 (D.C.Colo.1992). Because the Hausladen interpretation of § 502 has been critically analyzed by several other courts, much of the ground work for our decision has already been laid. Upon review of these cases, and, more importantly, the statute and legislative history, we respectfully conclude that Hausla-den was wrongly decided. While we concur generally with the analysis set forth in the well-reasoned Bailey opinion, we find the Hausladen rationale flawed in two particular areas: its harmonization of § 502 and Fed.R.Bankr.P. 3002, and its failure to grasp the semantic problem of describing a time-barred claim as “disallowed.” V. The Interrelation of §§ 501, 502 and Fed.R.Bankr.P. 3002. Section 502 states that “[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects.” 11 U.S.C. § 502(a) (emphasis added). According to the Code, a prerequisite to being “deemed allowed” under § 502 is filing under § 501. Section 501, “Filing of proof of" }, { "docid": "11730019", "title": "", "text": "she would be forced to distribute to secured creditors even if their claims were filed years into the plan distribution process. Once a claim is filed, it is deemed allowed under section 502(a) absent objection. Id. If the trustee lacked the ability to object on the grounds of timeliness, she would be faced with a new allowed secured claim. Id. It would be unclear whether to seek dismissal of the case, modification of the plan, or some other remedy given the practical impossibility of satisfying the claim. Id. The court agreed that bar dates are critical in ensuring the certainty of chapter 13 administration. Id. at 662 (citing In re Friesenhahn, 169 B.R. 615, 634-35 (Bankr.W.D.Tex.1994)). The Bankruptcy Rules provided no such bar date in the case of secured creditors. Id. In the years before the Macias case was decided, there was a division among the cases as to whether the bar date applied to any late claim in chapter 13. Id. at 661 (citing In re Hausladen, 146 B.R. 557 (Bankr.D.Minn.1992) (en banc); In re Zimmerman, 156 B.R. 192 (Bankr.W.D.Mich.1993)). The oft-cited case on the issue was Hausladen, which held that “[t]he rights of tardily filing claim holders in Chapter 13 cases are not defined by the Code but rather are controlled by the Chapter 13 plan.” 146 B.R. at 560. At that time, section 502(b) contained eight grounds for disallowance of claims, none of which dealt with the timeliness of the proof of claim. Id. at 559-60. Section 726 provided for distribution to untimely-filed claims in chapter 7 cases, illustrating that the treatment of a claim may have depended on the timing of the proof of claim; allowance did not. Id. at 560. In such cases, the plan would govern the treatment of late-filed claims in chapter 13 cases, not the disallowance process. Id. Congress expressly superseded Hausla-den in 1994 through the passage of section 502(b)(9), which provides that a late-filed claim may be disallowed. H.R. Rep. 103-835, 48, 1994 U.S.C.C.A.N. 3340, 3357 (“The amendment to section 502(b) is designed to overrule In re Hausladen, 146 B.R. 557" }, { "docid": "1083437", "title": "", "text": "accomplished, the substance of the claim is considered under § 502. A claim may not be allowed because of defects at any of these steps. Zimmerman, 156 B.R. at 198. This analysis of the claims allowance process makes §§ 501 and 502 and FRBP 3002 complimentary, rather than contradictory. Section 501 defines the substantive aspects of the right to file a claim, while FRBP 3002 establishes procedural guidelines for filing. The substantive grounds for denying allowance of a properly filed claim are contained in § 502. Consequently, the procedural rule does not make or amend substantive law. See, 28 U.S.C. § 2075. In re Hausladen, 146 B.R. 557 (Bankr.D.Minn.1992), incorrectly analyzed the claims allowance process in concluding that the time limitation in FRBP 3002 conflicts with 11 U.S.C. § 502. That case confuses a proof of claim not allowed because it is not filed as required by § 501 with a claim disallowed by the grounds set out in § 502. Hausladen failed to adequately consider that FRBP 3002 procedurally implements filing a claim under § 501 by providing the time and place for filing. The procedural requirements of FRBP 3002 must be followed in order to file a proof of claim under § 501. In re Johnson, 156 B.R. 557 (Bankr.N.D.Ill.1993). This Court adopts the analysis and conclusions of In re Bailey, 151 B.R. 28 (Bankr.N.D.N.Y.1993) and In re Zimmerman, 156 B.R. 192 (Bankr.W.D.Mich.1993) as follows: We agree with the Bailey court, which in reference to this interpretation of FED. R.BANKR.P. 3002, stated: ‘with all due respect to that observation the plain reading of FED.R.BANKR.P. 3002(a) requires this Court to reach the conclusion that that Rule emphatically requires the filing of a proof of claim within the period prescribed under FED.R.BANKR.P. 3002(c) as a condition precedent to allowance’. Bailey, 151 B.R. at 31, fn. 2. Zimmerman, 156 B.R. at 197. The above description of the claims allowance process reflects a long line of cases holding that the FRBP 3002(c) deadline is an absolute bar for filing and allowing proofs of claim. For example, in In re Chirillo, 84 B.R." }, { "docid": "11730020", "title": "", "text": "re Zimmerman, 156 B.R. 192 (Bankr.W.D.Mich.1993)). The oft-cited case on the issue was Hausladen, which held that “[t]he rights of tardily filing claim holders in Chapter 13 cases are not defined by the Code but rather are controlled by the Chapter 13 plan.” 146 B.R. at 560. At that time, section 502(b) contained eight grounds for disallowance of claims, none of which dealt with the timeliness of the proof of claim. Id. at 559-60. Section 726 provided for distribution to untimely-filed claims in chapter 7 cases, illustrating that the treatment of a claim may have depended on the timing of the proof of claim; allowance did not. Id. at 560. In such cases, the plan would govern the treatment of late-filed claims in chapter 13 cases, not the disallowance process. Id. Congress expressly superseded Hausla-den in 1994 through the passage of section 502(b)(9), which provides that a late-filed claim may be disallowed. H.R. Rep. 103-835, 48, 1994 U.S.C.C.A.N. 3340, 3357 (“The amendment to section 502(b) is designed to overrule In re Hausladen, 146 B.R. 557 (Bankr.D.Minn.1992), and its progeny by disallowing claims that are not timely filed.”). The Macias court found the amendment to section 502(b) to be significant, holding that “the new statute does presume a ‘timeliness’ feature, without distinguishing between secured or unsecured claims, and applies of course in chapter 13 cases.” 195 B.R. at 661. Secured creditors were omitted from Bankruptcy Rule 3002. Id. The court held that there must be some “test” to determine the timeliness of secured claims in chapter 13, despite the absence of any guidance from the statutory text. Id. The court held that the appropriate bar date for secured creditors is the one imposed by Bankruptcy Rule 3002(c), which addresses the trustee’s concerns regarding administration of the case. Id. at 663. In other words, the Macias court declined to impose the Bankruptcy Rule 3002(c) bar date on secured creditors. It decided to impose the same time limit as a matter of policy and to give effect to section 502(b)(9). Other courts have suggested different deadlines, such as “upon completion of all plan" }, { "docid": "5932190", "title": "", "text": "ignores is that proper filing of a claim under § 501 is a condition precedent to consideration under § 502. Zimmerman, 156 B.R. at 195. Section 502(a) refers to a claim “proof of which is filed under section 501”; section 502(b) instructs a court to “allow such claim” if it does not come within one of the listed exceptions. If a claim is not properly filed under § 501, a court need not examine the exceptions set out in § 502(b). Section 501 states inter alia that a creditor may file a proof of claim, and that if the creditor fails to timely file, proof of claim may be filed by other specified parties. Sections 501 and 502 are therefore consistent with Rule 3002’s disallowance of late filed claims. This court agrees with Zimmerman ’s conclusion that Rule 3002 is a procedural complement to §§ 501 and 502, rather than Hausladen’s conclusion that Rule 3002 is a conflicting substantive requirement. Zimmerman, 156 B.R. at 197; see also In re Messics, 159 B.R. 803 (Bankr.N.D.Ohio 1993) (siding with Zimmerman over Hausladen); In re Parr, 165 B.R. 677, 681-83 (Bankr.N.D.Ala.) (siding with Zimmerman over Hausladen and also citing a number of other recent supporting decisions); 8 Collier on Bankruptcy ¶ 3002.02[1] (Lawrence P. King ed., 15th ed. 1994) (“Rule 3002 complements §§ 501 and 502 of the Code”). Contra Haus-laden, 146 B.R. at 557 (“section 502 and Rule 3002 are not complementary but independent”). C. Contrary to Hausladen’s reading of the legislative history, this Court finds no indication that the removal from the Code to the Rules of the provision disallowing tardy claims signalled a major change in bankruptcy law. Under the previous Bankruptcy Act, § 57(n) specifically disallowed late filed claims. Former Bankruptcy Rule 302(e) set the time limit for filing Chapter 7 and Chapter 13 claims at 6 months. See Advisory Committee Notes following Rule 3002(c). The Advisory Committee Notes following Rule 3002(c) make clear that the new Rule 3002(e) was simply adapted from former Rule 302(e), with the minor change in the length of time provided for filing. As" } ]

[ { "docid": "15212349", "title": "", "text": "court’s denial of Meador’s habeas corpus petition. Rizzo v. Armstrong, 921 F.2d 855, 858 (9th Cir.1990). Our review is “limited to whether the Commission acted outside its statutory authority or committed a constitutional violation.”' Id. The Commission’s exercise of its judgment within the scope of its authority is unreviewable. Id. Since Meador’s claims are that the Commission acted outside statutory and constitutional limits, we have jurisdiction to consider them. A. Meador contends that the delay between the 1988 DUI offense and the issuance in 1989 of the violator warrant which included that offense was unreasonable and prejudicial. However, the Commission’s regulations specifically authorize it to delay the issuance of a warrant. “Issuance of a summons or warrant may be withheld until the frequency or seriousness of the violations, in the opinion of the Commission, requires such issuance.” 28 C.F.R. § 2.44(b) (1992); see also United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983). The Ninth Circuit, along with other circuits, has held that a due process violation only occurs when the Commission’s delay in holding a revocation hearing is both unreasonable and prejudicial. Camacho v. White, 918 F.2d 74, 79 (9th Cir.1990); see also United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir.1983); United States v. Rice, 671 F.2d 455, 458 (11th Cir.1982); White v. United States Parole Comm’n, 856 F.2d 59, 61 (8th Cir.1988); Cortinas v. United States Parole Comm’n, 938 F.2d 43, 45 (5th Cir.1991). We reject Meador’s argument that the Commission’s decision to delay action on Meador's parole violation was unreasonable. Far from being unreasonable, the Commission’s decision to withhold action benefitted Meador by allowing him to remain free longer. Much of the delay he now challenges is attributable to his conduct while he was free. When Meador tested positive for cocaine use, the continuing nature of his violations justified the issuance of the warrant and the start of revocation proceedings. It was his illegal actions, and not the Commission’s decision, that led to the issuance of the warrant and his subsequent loss of street time. We also reject Meador’s argument that because of the" } ]

[ { "docid": "22469735", "title": "", "text": "the court considered Mr. Neal’s “current age, his health and the need to have a punitive and deterrent effect.” Id. Mr. Neal timely appealed. II ANALYSIS A. Discovery Mr. Neal first claims that his Fifth Amendment right to due process of law was violated when the district court denied his request for discovery. We review Mr. Neal’s constitutional claim de novo. See, e.g., United States v. Ramos, 401 F.3d 111, 115 (2d Cir.2005) (reviewing de novo an alleged due process violation in context of supervised release revocation). Following the Supreme Court’s decisions, we have held that supervised release revocation hearings are not criminal prosecutions. See United States v. Kelley, 446 F.3d 688, 689-91 (7th Cir.2006) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Consequently, the full panoply of rights that the Constitution guarantees to criminal defendants does not extend to individuals who are the subject of revocation proceedings. Instead, in Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court set forth the more streamlined process that is due to an individual already convicted of an underlying crime, but in danger of losing his conditional liberty. The Court stated that due process requires that a parolee be given: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact-finder as to the evidence relied on and reasons for revoking parole. Id. at 489, 92 S.Ct. 2593. Although Mor-rissey involved a parole revocation, the Supreme Court extended these protections to probation revocation proceedings in Gagnon v. Searpelli 411 U.S. 778, 93" }, { "docid": "12383704", "title": "", "text": "not change the result in this case, for we have reviewed all of McBride’s claims and conclude that only his Sixth Amendment claim has merit. This case therefore presents a pure question of law, such that we must determine whether McBride has made a “substantial showing of a denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). II. The Confrontation Clause and Parole Revocation Hearings McBride claims that his right to procedural due process was violated because the State revoked his parole in violation of his Sixth Amendment right to confront and cross-examine adverse witnesses. Specifically, McBride asserts (and the State does not disagree) that the sole evidentiary basis for revoking his parole consisted of hearsay evidence introduced by officer McNear, evidence that consisted of Illescas’s statements to McNear about what happened on the night Illescas was allegedly assaulted. Accordingly, argues McBride, he was denied the opportunity to cross-examine and confront Illescas in violation of the Sixth Amendment. We agree. In the seminal decision of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that the constitutional right to procedural due process attaches to parole revocation hearings. In reaching this conclusion, the Court recognized that “the concept of due process is flexible,” but that its flexibility “is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.” Id. at 481, 92 S.Ct. at 2600. As such, although a formal trial-like procedure is not required, the Court, after concluding that the Due Process Clause of the Fourteenth Amendment provided at least informal procedural protections to parolees, outlined the minimum constitutional requirements for the two critical stages in the parole revocation process. First, states conduct a preliminary hearing, in which the State determines “whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.” 408 U.S. at 485, 92 5.Ct. at 2602. Because there may be a substantial lag time between the" }, { "docid": "3944345", "title": "", "text": "a subsequent hearing. 18 U.S.C. § 4208(h); 28 C.F.R. § 2.14 (1986). Plaintiffs Theodore Green and Daniel Porter commenced this suit, on behalf of themselves and others similarly situated, as federal prisoners incarcerated within the District of Connecticut whose early release dates had been set by the Commission but who had not yet been released from prison (“parole grantees”). At issue in this case are the hearing procedures to be followed when, after an early release date has been set but prior to the arrival of that date, the Commission is notified that the parole grantee has been guilty of new misconduct or receives other new unfavorable information and wishes to consider whether to rescind the early release date. A. Drayton and its District Court Predecessors In 1972, the Supreme Court ruled that a parolee, i.e., one already released from prison on parole, had certain due process rights that must be respected before his parole could be revoked. These included the right to written notice of claimed parole violations, disclosure of the evidence against him, and a hearing before a neutral body such as a traditional parole board at which he could be heard, present witnesses, and confront and cross-examine adverse witnesses. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court extended these requirements to probation revocation proceedings and added a requirement that, within the responsible agency’s discretion, the parolee was entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thereafter, in a series of habeas corpus petitions filed in the District of Connecticut, a number of parole grantees, contending that they were entitled to the same protections as parolees, alleged that their due process rights were being violated by the Commission’s parole rescission procedures. In the first such case, Williams v. United States, 383 F.Supp. 402 (D.Conn.1974), the district court held that the due process rights accorded in parole revocation hearings were also required in parole rescission hearings; these included advance notice of the hearing, the assistance of counsel, and the opportunity to" }, { "docid": "22044221", "title": "", "text": "custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 42 U.S.C. § 1983. Friedl articulates two claims under section 1983. First, he alleges that he was denied procedural due process when prison authorities withdrew him from the work release program. Second, he contends that his withdrawal from the program amounts to a substantive due process violation because his work release was revoked in retaliation for his application for, and appeal of the denial of, public benefits. In our view, plaintiff has stated a claim for violation of his procedural due process rights. Prisoners on work release have a liberty interest in continued participation in such programs. See Kim v. Hurston, 182 F.3d 113, 117 (2d Cir.1999); Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir.1978) (per curiam). The Due Process Clause protects inmates against “atypical and significant” deprivation of liberty, Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), including withdrawal of work release. Thus, prisoners are entitled to procedural due process before they are subjected to such a deprivation of liberty. Friedl’s complaint successfully alleged facts demonstrating that the procedures used to remove him were insufficient to satisfy minimum due process requirements. In the parole revocation context, the Supreme Court has held that due process requires: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present .. evidence; (d) the right to confront and cross-examine adverse witnesses ...; (e) a \"neutral and detached\" hearing body such as a traditional parole board ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d" }, { "docid": "6960436", "title": "", "text": "that it had completed a dispositional review of his detainer and that it had decided to leave the detain-er in place. Federal officials subsequently transferred petitioner from the State of Washington to the Federal Correctional Institution at Safford, Arizona. Because his transfer occurred before his parole revocation hearing was due, he was afforded a hearing in the District of Arizona and his parole was revoked. II 1. Petitioner first contends that his federal sentence expired on November 16, 1987, when he was serving his state sentence in Washington. This contention is without merit; the issuance of the parole violator warrant tolled the running of his federal sentence. See 28 C.F.R. § 2.44(d) (1988). 2. Petitioner next contends, also without merit, that the USPC denied him due process after the parole violator warrant was lodged as a detainer. The USPC properly notified petitioner of his rights and the possible consequences of the parole revocation proceedings; the back of the warrant application sent to petitioner clearly set forth his rights throughout the proceedings, including his right to an attorney and to present documentary evidence and witnesses at any hearing. See 18 U.S.C. § 4213(c)(3) (1982), repealed Pub.L. No. 98-473, Title II, § 218(a)(5), 235, 98 Stat. 2027, 2031 (1984). See also Morrissey v. Brewer, 408 U.S. 471, 486-89, 92 S.Ct. 2593, 2602-04, 33 L.Ed.2d 484 (1972). More importantly, it explicitly warned him that he could lose credit for time spent on parole, also known as “street time.” Compare Raines v. United States Parole Comm’n, 829 F.2d 840, 842-43 (9th Cir.1987). Finally, petitioner’s state conviction constituted probable cause for retaking him into federal custody. See 28 C.F.R. § 2.48(f) (1988). Thus, he was not entitled to a preliminary interview before the execution of the parole violator warrant. 3. Petitioner also claims that the USPC failed to conduct a timely review of the detainer’s placement as required by 18 U.S.C. § 4214(b)(1). The district court properly dismissed this claim as moot. Absent prejudice or bad faith, the only remedy for a default by the Commission is a writ of mandamus to compel compliance with" }, { "docid": "5851096", "title": "", "text": "such a representation, there is no evidence that White was told these charges would not be considered in determining whether a subsequent violation would be characterized as repetitive. Furthermore, only the Parole Commission, not a parole officer, is authorized to make parole revocation determinations. 18 U.S. C. § 4203(b)(3). We further conclude that the lapse of time between the charges in question and the issuance of the parole violator warrant was not unreasonable and did not result in a waiver of the Commission’s authority to use these charges. Unlike the cases cited in White’s brief, there is nothing to suggest that the lapse of time in the present case was the result of unfair tactics. The decision not to seek revocation after the May 1984 charge/conviction was certainly reasonable; when, however, White incurred two additional DWI charges within three months of each other, the apparent continuing nature of his violations justified the institution of revocation proceedings. Moreover, White has not alleged that the lapse of time prejudiced his ability to challenge the earlier violations or to produce evidence of mitigating circumstances. See United States v. Wickham, 618 F.2d 1307, 1310 (9th Cir.1979) (in order to show prejudice, delay must impair ability to contest facts of alleged violation, or adversely affect ability to present favorable evidence). White also argues that the district court erred in dismissing his claim that his due process rights were violated because he did not receive notice of the Commission’s decision to consider the receipt-of-stolen-property conviction until the commencement of the second hearing. We find this claim without merit because White has not shown that the alleged defect prejudiced him. Due process requires that a parolee be given written notice of the conditions of parole allegedly violated and of the possible action to be taken by the Commission. 18 U.S.C. §§ 4213(c)(3), 4214(a)(2)(A); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). In order for the failure to provide written notice to form a basis for habeas relief, however, a petitioner must demonstrate that he was prejudiced by the claimed defect." }, { "docid": "23119658", "title": "", "text": "Commission could have summoned him for a revocation hearing rather than arrest him, and that the decision to arrest was made in bad faith. Benny complains that the Commission failed to promptly make a probable cause determination after taking him into custody. A parolee’s conditional liberty is entitled to due process protection under the Fifth and Fourteenth Amendments. See Morrissey v. Brewer, 408 U.S. 471, 482, 485-89, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (holding that parolee, may not be deprived of conditional liberty without the basic due process safeguards of notice, prompt preliminary determination, hearing, counsel, confrontation and an opportunity to present evidence). A. When faced with a parolee alleged to have violated parole, the Commission has discretion either to serve a summons or to issue a parole violator warrant and take the parolee into custody. 18 U.S.C. § 4213(a) (1984). The Commission chose the latter option in Benny’s case. We do not have jurisdiction to review such a discretionary act by the Commission other than to consider whether the decision was so arbitrary or capricious as to violate due process. Wallace, 802 F.2d at 1551-52. Benny alleges that his probation officer harbored extreme personal animosity against him and believed that Benny had not been adequately punished for his crime. Even if Benny’s accusations prove true, he fails to show that the probation officer’s animosity affected the decision to arrest. The probation officer did not unilaterally make the decision to arrest. He only so recommended. A case analyst at the Commission reviewed the charges and evi dence, and concurred in the recommendation to issue a parole violator warrant. The Commission, acting through a regional commissioner, ultimately decided to issue the warrant. See 28 C.F.R. 2.44(a) (\"A summons or warrant may be issued or withdrawn only by the Commission, or a member thereof.\"). Benny presents no evidence that personal bias infected the recommendation of the case analyst or the decision of the regional commissioner. The Commission in fact had rejected a prior recommendation by Benny's probation officer to arrest Benny and commence revocation proceedings for the alleged parole violations in" }, { "docid": "164593", "title": "", "text": "the petition for writ of habeas corpus did not specifically address Vanes’ challenge to the loss of his “street time.” Vanes filed a timely notice of appeal, properly invoking this court’s jurisdiction under 28 U.S.C. § 1291. DISCUSSION Vanes concedes that the excessive-use-of-alcohol findings were — standing alone — sufficient to support his parole revocation. He argues, however, that the 1980 DWI conviction was not a proper basis for revocation and loss of “street time” because the Parole Commission failed to provide him with pre-hearing notification that the conviction would be used as a parole violation. We agree. A. Due Process: Notice of Violation. It is settled law that a parolee’s liberty involves significant values protected by the due process clauses of the fifth and fourteenth amendments. Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The minimum requirements of due process include, inter alia, written notice of the claimed violations of parole. Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. at 2604. This constitutional requirement has been incorporated into and is prescribed by statute , regulation , and the Parole Commission’s procedures manual. Appellant claims the Parole Commission erred by not notifying him that the 1980 DWI conviction would be used as a parole violation charge. It is undisputed that prior to the February 8, 1982 revocation hearing Vanes was never expressly notified that the 1980 DWI conviction would be utilized as a violation charge. The DWI conviction was not listed on either the October 2, 1981 Warrant Application or the Warrant itself; nor was it mentioned in the November 12, 1981 Supplemental Warrant Application. Although the December 21, 1981 Hearing Summary contained a reference to the two 1980 DWI “arrests,” it is apparent that a DWI “conviction” was not discussed with Vanes because the summary expressly stated “[h]e [Vanes] has no new convictions at this time and so is credited with street time.” Furthermore, the January 18, 1982 Notice of Action informing appellant that his case had been continued for" }, { "docid": "17193442", "title": "", "text": "Fourth Amendment, not substantive due process, prohibits arrests without probable cause); Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) (officer who requests a warrant without probable cause may be liable for damages in § 1983 action for arrest in violation of Fourth Amendment). . The Notice of Probable Cause Hearing indicates that it is based on the violations report of MacClymont. Friedland alleges that Dilkes signed the parole violation warrant at the request of MacClymont. This is consistent with New Jersey regulations which allow a parole officer to request a parole violation warrant and a District Parole Supervisor to issue a warrant. See N.J.A.C. 10A:71-7.2(a) and (b). . The state parole revocation regulations provide that it \"shall be the responsibility of the parole officer, District Parole Supervisor or the designated representative of the Commission, as appropriate, to give written notice to the parolee of the time, date and place of the preliminary hearing at least three days prior to the preliminary hearing unless the parolee waives such notice.” NJ .A.C. 10A:71-7.7(a). . Although the \"Notice of Probable Cause Hearing” informed Friedland of \"[t]he right to confront and cross-examine adverse witnesses, unless the Hearing Officer determines that such witnesses would be subjected to risk or harm,\" see Defendants' Brief, Exhibit E, it did not inform him that he had the right tq request that a person who has given adverse information on which a parole violation is based be available at the hearing for questioning. Morrissey, 408 U.S. at 487, 92 S.Ct. 2593. . New Jersey parole revocation regulations authorize a preliminary hearing officer to impose additional parole conditions. \"When the hearing officer determines that the parolee should be released from custody, the hearing officer shall establish any parole conditions deemed reasonable in order to reduce the likelihood of recurrence of criminal behavior.\" N.J.A.C. 10A:71-7.9(c). . A state prisoner is required to exhaust available state remedies prior to invoking federal ha-beas relief. 28 U.S.C. §§ 2254(b)(1) and (c) (1996); Preiser, 411 U.S. at 489-92, 93 S.Ct. 1827. . Compare 42 U.S.C. § 1997e(c) which provides" }, { "docid": "1926219", "title": "", "text": "him due process of law and did not comply with Neb.Rev.Stat. §§ 29-2266 and 2267 (1974 Cum.Supp.). The supreme court affirmed the district court’s decision. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975). The petitioner subsequently petitioned this Court for an application for a writ of habeas corpus. The petitioner has raised many arguments in support of his application for the writ. Although the Court finds that the state committed errors in the revocation proceedings, the errors were not prejudicial to the petitioner and, therefore, petitioner’s application for writ of habeas corpus is denied. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d. 484 (1972), the United States Supreme Court established the following minimal due process requirements for preliminary and final parole revocation proceedings: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. 408 U.S. at 489, 92 S.Ct. at 2604. The same minimal due process requirements were extended to probation revocation proceedings in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 36 L.Ed.2d 656 (1973). Petitioner first contends that under the holding of Morrissey he was entitled to a preliminary hearing held reasonably near in time and place to the alleged violations of Counts I and II. The Court in Morrissey held: [D]ue process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly convenient after arrest while information is fresh and sources are available. 408 U.S. at 485, 92 S.Ct. at 2602. Therefore, the preliminary hearing requirement of Morrissey is" }, { "docid": "22927665", "title": "", "text": "sentence already established and parole revocation hearings, e. g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and (4) prison disciplinary proceedings, e. g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). By analyzing what is required in a probation revocation setting, taking account of the additional process due when a suspended sentence is imposed, we shall determine whether Se-gal’s due process rights were infringed. Morrissey v. Brewer, supra, articulated hearing requirements for parole revocation. The same rights were later extended to probationers in revocation proceedings: Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer, supra. Gagnon v. Scarpelli, supra, 411 U.S. at 782, 93 S.Ct. at 1759-1760 (footnotes omitted). Thus in order to revoke probation, there must be first a “preliminary hearing at the time of [the probationer’s] arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his [probation], and [then] a somewhat more comprehensive hearing pri- or to the making of the final revocation decision.” Id. The second hearing must include the following minimum requirements: (a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body . ; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation]. Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. at 2604. It should be" }, { "docid": "3944346", "title": "", "text": "and a hearing before a neutral body such as a traditional parole board at which he could be heard, present witnesses, and confront and cross-examine adverse witnesses. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court extended these requirements to probation revocation proceedings and added a requirement that, within the responsible agency’s discretion, the parolee was entitled to representation by counsel. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Thereafter, in a series of habeas corpus petitions filed in the District of Connecticut, a number of parole grantees, contending that they were entitled to the same protections as parolees, alleged that their due process rights were being violated by the Commission’s parole rescission procedures. In the first such case, Williams v. United States, 383 F.Supp. 402 (D.Conn.1974), the district court held that the due process rights accorded in parole revocation hearings were also required in parole rescission hearings; these included advance notice of the hearing, the assistance of counsel, and the opportunity to call witnesses and to confront and cross-examine adverse witnesses. Id. at 405. In at least five subsequent cases, the court found that the Commission had denied each petitioner the due process rights outlined in Williams. See, e.g., Green v. Nelson, 442 F.Supp. 1047, 1058-60 (D.Conn.1977) (finding that the Commission had provided Theodore Green, one of the named plaintiffs in the present action, with a constitutionally inadequate parole rescission hearing and ordering his release on parole), and cases cited therein; Porter v. Wilkinson, No. B-77-245 (D.Conn. Mar. 1, 1978) (granting relief to Daniel Porter, the other named plaintiff in this case, on the same grounds). None of these decisions was appealed by the Commission. In 1978, when the district court in Dray-ton held that the Commission had once again violated a parole grantee’s due process rights by conducting a parole rescission hearing without the requisite procedural protections, 445 F.Supp. at 311, the Commission appealed. As discussed in greater detail in Part II below, this Court approved the district court’s holding that a parole grantee has a" }, { "docid": "164592", "title": "", "text": "Commission had no choice but to extend Vanes’ April 1983 expiration date because the 1980 DWI conviction mandated loss of credit for all the time Vanes had been free on parole, the so-called “street time.” The Parole Commission adopted the February hearing examiner’s findings and by Notice of Action dated March 3, 1982, informed Vanes that his parole had been revoked but, that he would be reparoled on April 6, 1982. The Parole Commission further held that none of the prior time spent on parole supervision (December 14, 1977 to October 6, 1981) would be credited toward his remaining sentence. Vanes unsuccessfully appealed his loss of “street time” to both the Regional Commission and the National Appeals Board. Having exhausted his administrative remedies he then filed a petition for writ of habeas corpus in United States District Court for the District of Arizona. On October 31, 1983 the district court denied Vanes’ petition, finding that “there were adequate grounds to revoke petitioner’s parole other than the 1980 charges of driving while impaired.” The Order denying the petition for writ of habeas corpus did not specifically address Vanes’ challenge to the loss of his “street time.” Vanes filed a timely notice of appeal, properly invoking this court’s jurisdiction under 28 U.S.C. § 1291. DISCUSSION Vanes concedes that the excessive-use-of-alcohol findings were — standing alone — sufficient to support his parole revocation. He argues, however, that the 1980 DWI conviction was not a proper basis for revocation and loss of “street time” because the Parole Commission failed to provide him with pre-hearing notification that the conviction would be used as a parole violation. We agree. A. Due Process: Notice of Violation. It is settled law that a parolee’s liberty involves significant values protected by the due process clauses of the fifth and fourteenth amendments. Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The minimum requirements of due process include, inter alia, written notice of the claimed violations of parole. Morrissey v. Brewer, 408 U.S." }, { "docid": "935031", "title": "", "text": "the fifth amendment. There is a difference of opinion among the lower federal courts as to whether due process applies to parole decision-making, and if it does, the nature of the process that is due. In Morrissey v. Brewer, 1972, 408 U. S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 the Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, revocation of a parolee’s liberty falls within the protection of the due process clause. Thus, the court held that a revocation hearing must be conducted reasonably soon after the parolee’s arrest and that minimum due process requirements are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of the evidence against him; (3) opportunity to be ' heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontations; (5) a neutral and detached hearing body such as the traditional parole board; and (6) a written statement by the factfinders as to the evidence relied on and the reasons for revoking parole. Morrissey, however, does not dictate that prisoners looking forward to release on parole be equated with paroles facing loss of their conditional freedom. While a necessary precondition to revocation of parole and reincarceration is a factual finding that a parolee has violated a condition of his parole, the parole release decision is based on a complex of tangible and intangible, of objective and subjective, factors having to do with psychiatry, criminology, psychology, penology and human relations. In Morrissey, the Court, in footnote 8 of its opinion, 408 U.S. 482, 92 S.Ct. 2593, 33 L.Ed.2d 484, intimated that the due process requirements established therein for parole revocation proceedings need not be extended to those still incarcerated seeking parole. The Supreme Court, quoting approvingly from United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir. 1971, 443 F.2d 1079, 1086, vacated as moot, 1971, 404 U.S. 879, 92 S.Ct." }, { "docid": "7870241", "title": "", "text": "Thus, the Parole Commission’s abuse of discretion wrought great damage on Wright’s liberty. Due Process I also believe that Wright’s due process rights were violated, and therefore dissent from the majority’s decision to the contrary. One need look no further than the majority's opinion itself to realize the questionable nature of its ruling that no due process violation occurred. At the end of its discussion of this issue, the majority concludes “it is likely that no due process violation occurred....” In the realm of constitutional rights, such a tentative and hedged conclusion is unacceptable. The timing of events casts doubt on the majority’s holding that no due process violation occurred because the parole officer’s letter did not prejudice Wright’s parole revocation. Wright’s initial revocation hearing took place on January 19, 1988, after which the panel concluded that the evidence was insufficient to find that Wright assaulted the security officer. Two days later, the parole officer wrote to the Commissioner for the regional Parole Commission to emphasize his belief that Wright assaulted the security officer. On February 1, 1988, the regional Parole Commission overturned the initial ruling and decided that Wright had assaulted the security officer. That the January 21st letter influenced this decision seems highly likely. If this was the case, then failing to notify Wright of the letter and denying him the opportunities to respond and to confront its author violated Wright’s due process rights. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (due process rights assured at parole revocation hearing, including the right to disclosure of evidence against parolee and the right to confront and cross-examine adverse witnesses). Conclusion I respectfully dissent from both the majority’s jurisdictional and constitutional holdings. This case should be referred to the court en banc to decide whether we should depart from our traditional abuse-of-discretion standard when we review parole decisions. . In Evidente, this court held that it “is not empowered under 18 U.S.C. § 3742, or any other statute, to review a sentencing court’s exercise of its discretion to refrain from departing either" }, { "docid": "5812364", "title": "", "text": "Board to grant a prisoner release” (Price, 53 F.3d at 371), we hold that the regulations do not give any prisoners a liberty interest in parole. The procedures the district court imposed in the name of due process were therefore unwarranted. II This brings us to the matter of parole revocation. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), established that a state may not terminate a parolee’s conditional liberty consistent with the Due Process Clause unless it follows “some orderly process, however informal.” Id. at 482, 92 S.Ct. at 2601.’ Our concern therefore is with the constitutional adequacy of the procedures the District of Columbia already has in place. A Under the Board’s regulations, whenever there is probable cause to believe that a parolee has committed a crime or otherwise violated the conditions of parole, the Board or a member of the Board may issue a warrant for the parolee’s arrest. D.C.Mun. Regs. tit. 28, §§ 217.1-.7. After the warrant is executed, the parolee “has the right to have a preliminary interview ... at or reasonably near the place of the alleged parole violation or arrest, without unnecessary delay.” § 219.1. In the preliminary interview, the parolee is informed of the parole conditions allegedly violated and is informed of his right “to written notice of the claimed violations ...; disclosure ... of evidence against him ...; and opportunity to be heard in person, to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) at a hearing before the Board or a member of the Board; and a written statement of the Board’s final determination.” § 219.1(b). The parolee is also told of the “approximate timé, place, and purpose(s) of the revocation hearing.” § 219.1(c). Revocation hearings must be held “at or reasonably near the place of the alleged parole violation or arrest, within sixty (60) days of the preliminary interview.” § 219.3. Board policy requires that revocation hearings be held within 30 days after the Board is notified of" }, { "docid": "13298177", "title": "", "text": "374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (federal prisoner constitutionally entitled to speedy trial on pending indictment for offense under state law); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (state prisoner is “in custody” for purpose of federal habeas corpus challenge to denial of his constitutional right under Smith v. Hooey to speedy trial on pending indictment in another state). We hold that a parole violator warrant lodged as a detainer represents sufficient “custody” of a parolee-prisoner to support habeas corpus jurisdiction under 28 U.S.C. § 2241. III. THE RIGHT TO A PROMPT HEARING In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court ruled that due process requires a “preliminary” and “final” hearing for revocation of parole or probation. The parties here agree that the need for the preliminary, or “probable cause” hearing is eliminated in these cases by the conviction on the violation charged. The matter in dispute is the timing of the final hearing — may it be delayed until the intervening sentence has been served, or is there a due process right to a determination of an outstanding detainer within a reasonable time after conviction on an intervening charge? Questions of procedural due process require a two-step analysis: first, does the deprivation under challenge constitute a denial of liberty or property within the meaning of the due process clause, and second, if so, upon consideration of the private and governmental interests implicated, is the deprivation unconstitutional? E. g., Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548, 556-57 (1972), Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972). As to the first half of this analysis, the Court in Morrissey found that a parolee’s interest in not being incarcerated solely on the basis of an executed parole violator warrant was cognizable under the due process clause. The instant appeals" }, { "docid": "22179757", "title": "", "text": "reasserting his client’s constitutional right to confrontation, and asking the court to find that only the grade C violations had been committed. Without ruling specifically on the admissibility of Officer Per-due’s hearsay testimony or explaining the basis for his findings, the district court found that Comito had committed all four of the violations of supervised release alleged in Perdue’s Revocation Petition. Then, without explanation or reference to the Sentencing Commission’s Guidelines, the court sentenced Comito to thirty months. II. Comito challenges the district court’s reliance on Officer Perdue’s hearsay testimony to establish the fraud violation — the testimony regarding Connell’s verbal statements — and contends that he was denied his due process right to confrontation. In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court defined certain minimum due process requirements for parole revocation, which have since been extended to the revocation of probation, see Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and the revocation of supervised release, see Fed. R.Crim.P. 32.1. Under Morrissey, every releasee is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses. 408 U.S. at 489; see also Fed.R.Crim.P. 32.1(a)(2)(D) (“opportunity to question adverse witnesses”). This right to confrontation ensures that a finding of a supervised release violation will be based on verified facts. See Morrissey, 408 U.S. at 484. Accordingly, in determining whether the admission of hearsay evidence violates the releasee’s right to confrontation in a particular case, the court must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it. See United States v. Walker, 117 F.3d 417, 420 (9th Cir.1997) (citations omitted). In -.the present case, the district court failed to conduct the requisite due process balancing test, or even to rule directly on the admissibility of Officer Per-due’s hearsay testimony, despite that fact that at the inception of the revocation hearing the parties had accurately described the balancing test to the court. Although the judge" }, { "docid": "3627708", "title": "", "text": "of habeas corpus in 1997 and that denial was upheld by the D.C. Court of Appeals. Id. In 2000, Singletary again sought habeas relief in Superior Court but the court denied his claim and the D.C. Court of Appeals affirmed that decision. Id. ¶ 11. Singletary represented himself in both of these proceedings. Id. ¶ 12. With the assistance of a federal public defender, Singletary petitioned for a writ of habeas corpus in the U.S. District Court for the District of Columbia. Singletary Deck ¶ 13. That petition was denied, Singletary v. D.C. Bd. of Parole, No. 00-1263, 2003 WL 25258497 (D.D.C. Dec. 16, 2003), and Singletary appealed the decision. Singletary Decl. ¶ 14. On July 7, 2006, ten years after the plaintiffs parole had been revoked, the U.S. Court of Appeals for the District of Columbia finally granted relief. The Court held that the Board’s decision did not comport with due process because the parole revocation was based on such a “shoddy” record that it violated Singletary’s constitutional right to due process. Singletary v. Reilly, 452 F.3d 868, 869 (D.C.Cir.2006). The court ordered that Singletary be provided with a new parole revocation hearing. Singletary, 452 F.3d at 873-75. In reaching its decision, the Court of Appeals noted that in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court ruled that a parolee is entitled to a hearing before a final decision on revocation can be made, and it set out the minimum due process requirements for such a hearing: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for" }, { "docid": "5851097", "title": "", "text": "to produce evidence of mitigating circumstances. See United States v. Wickham, 618 F.2d 1307, 1310 (9th Cir.1979) (in order to show prejudice, delay must impair ability to contest facts of alleged violation, or adversely affect ability to present favorable evidence). White also argues that the district court erred in dismissing his claim that his due process rights were violated because he did not receive notice of the Commission’s decision to consider the receipt-of-stolen-property conviction until the commencement of the second hearing. We find this claim without merit because White has not shown that the alleged defect prejudiced him. Due process requires that a parolee be given written notice of the conditions of parole allegedly violated and of the possible action to be taken by the Commission. 18 U.S.C. §§ 4213(c)(3), 4214(a)(2)(A); Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). In order for the failure to provide written notice to form a basis for habeas relief, however, a petitioner must demonstrate that he was prejudiced by the claimed defect. D’Amato v. United States Parole Comm’n, 837 F.2d 72, 77 (2d Cir.1988); see Staege v. United States Parole Comm’n, 671 F.2d 266, 268-69 (8th Cir.1982) (per curiam). The October 23, 1986 Notice of Action apprised White that a subsequent charge and its consequences upon “the revocation of his parole and subsequent action” would be considered at the second hearing. The panel report of the December 4, 1986 revocation hearing indicates that White was “advised in as much as the charges listed on the warrant application had not been discussed with him at the time of his initial parole revocation hearing he had the right for appointment of counsel,” which White declined. Although White argues that the failure to provide adequate notice prevented him from presenting evidence in his favor, he has never challenged the receipt-of-stolen-property conviction, nor has he demonstrated what evidence he could have presented relevant to the Commission’s decision, which was based upon the repetitive nature of his violations. We have reviewed White’s other assignments of error and conclude that they are without" } ]

[ { "docid": "5402603", "title": "", "text": "HAYNSWORTH, Chief Judge: The question presented by this case in admiralty is whether claims against a ship as a common carrier for damage to or loss of cargo are “preferred maritime liens” “for damages arising out of tort,” 46 U.S.C. § 953(a), and thus superior to a valid preferred mortgage lien. 46 U.S.C. § 953(b), we hold that they are. Oriente Commercial, Inc., Black and Decker, Inc., and the United States were among many in rem claimants against the M/V Floridian, which was arrested and sold by order of the court in May 1973. The United States held two valid preferred ship mortgages on the vessel. Oriente took a default judgment on its claim that a shipment of meat was negligently damaged in transit. Black and Decker holds a default judgment on its claim that the vessel negligently failed to deliver part of a shipment of machinery. The several claims far exceed the proceeds of the sale, so the question of priority of the liens must be met. Title 46 U.S.C.A. § 953 provides that the preferred mortgage lien shall have priority over all claims against a vessel sold by judicial order except preferred maritime liens and expenses, fees, and costs allowed by the court. Subsection 953(a)(2) defines “preferred maritime liens” to include “a lien for damages arising out of tort . . . .” The district court acknowledged that the asserted liens were maritime and that the cargo claimants had alleged loss and damage due to negligence in operation of the ship as a common carrier, but held that the claims did not give rise to preferred maritime liens. It was reasoned that such claims ought to be brought in contract, but, because of the broad duties of the vessel as a common carrier, almost always may be brought as tort actions. Since such claims are thus “hybrids” and since the Ship Mortgage Act was intended to promote ship financing, the court believed that cargo claims must be sub-' ordinate to preferred mortgages. This conclusion was bolstered by the court’s observation that if the cargo liens were superior to" } ]

[ { "docid": "5561355", "title": "", "text": "the preservation of the cargo Ken does not require that the cargo remain on the vessel. Provided that the carrier has not unconditionaKy deKvered the cargo to the consignee, the carrier may preserve the Ken by maintaining actual or constructive possession of the cargo. See 4,885 Bags of Linseed, 66 U.S. at 114 (“[I]t is frequently, perhaps more usuaKy, understood between the parties, that transferring the goods from the ship to the warehouse shaK not be regarded as a waiver of the Ken, and that the shipowner reserves the right to proceed in rem to enforce it, if the freight is not paid.”); Beverly Hills Nat’l Bank, 437 F.2d at 304 (“[T]he vessel owner’s Ken on cargo for freight continues only so long as the cargo remains in the owner’s actual or constructive possession.”); see also 2 Benedict on Admiralty § 23, at 2-19 to 2-20 (7th ed. rev.1995) (citing The Saturnus, 250 F. 407 (2d Cir.), cert. denied, 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1247 (1918)) (“Such liens are not strictly a privilege, as are liens on ships, but are approximate to the possessory lien of the land carrier and do not survive unconditional delivery of the cargo.”); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 9-1, at 489-90 (2d ed.1994) (footnote omitted) (“The deposit of the goods in a warehouse will not be considered an unconditional delivery giving up the lien, however, if the evidence shows the parties intended to preserve it.”). TWI preserved its cargo lien by maintaining actual or constructive possession of the Pyramid until the district court granted TWI’s application for its arrest. At no point did TWI deliver the Pyramid, conditionally or unconditionally, to Diamond and Chariot. Accordingly, the fact that the Pyramid was not on board the vessel Lauren when TWI filed its complaint in admiralty poses no bar to the enforcement of TWI’s cargo lien. In addition, by paying Maersk for the freight due on the bill of lading between Maersk and TWI, TWI by no means extinguished its lien for the freight due on its bill of lading" }, { "docid": "14115911", "title": "", "text": "the ship, its navigation or its management afloat____ 1 E. Jhirah, A. Sann, B. Chase & M. Chyn-sky, Benedict on Admiralty § 182, at 11-7 (7th ed. 1985) (hereinafter “Benedict”). Application of the broad guiding principles of maritime contract jurisdiction has led to “fairly complete coverage of the primary operational and service concerns of the shipping industry, with a few anomalous exceptions.” G. Gilmore & C. Black, The Law of Admiralty § 1-10, at 22 (2d ed. 1975). One of the “anomalous exceptions” is agency contracts. The general rule is that agency contracts by which a party agrees to solicit or procure freight, passengers, crew and supplies for a vessel are not deemed maritime in nature. 7A J. Moore, Moore’s Federal Practice para. .250, at 3001 (2d ed. 1985); accord, Peralta, 739 F.2d at 802 (agency contract calling for husbanding of vessel is not within admiralty jurisdiction). Therefore, actions to recover commissions due under such agreements have been held to be outside the admiralty jurisdiction, e.g., Minturn v. Maynard, 58 U.S. (17 How.) 476, 477, 15 L.Ed. 235 (1855) (action by general agent or broker to recover accounts due for advances and commissions on disbursements did not involve maritime contract); Brown v. West Hartlepool Steam Navigation Co., 112 F. 1018, 1018 (5th Cir.1902) (action by agent or broker based on contract in charter party to pay commission for procurement of charter party not maritime contract); and such agreements have been held incapable of giving rise to a maritime lien. E.g., The J.C. Williams, 15 F. 558, 560 (S.D.N.Y.1883) (commissions due agent or ship’s husband for procuring charter and making advances do not give rise to maritime lien); The Crystal Stream, 25 F. 575, 576 (S.D.N.Y.1885) (action asserting lien for wages due agent for freight solicitation is not within admiralty jurisdiction because services are not maritime and therefore do not give rise to a lien); The Humboldt, 86 F. 351, 352 (N.D.Wash.1898) (action in rem would not lie for breach of contract making person general passenger and freight agent because contract was not a maritime contract and therefore could not be" }, { "docid": "18103942", "title": "", "text": "they are subrogated to claims of pre-paid prospective passengers. Of course, the Sureties do not have a maritime lien if the passengers, involved in this regard in an executory contract, do not have one. They do not. An executory contract, of course, is one that has yet to be fully performed. For example, when passengers pay in advance for a cruise, the tickets issued them in exchange are wholly executory until the passengers board the ship and embark. The breach of an executory contract does not create a maritime lien. This legal principle has gained universal acceptance in American law, and is applied in contracts involving the carriage of goods, transportation of passengers, and the provision of supplies, repairs, and services to a vessel. Schoenbaum at § 9-2. See also BargeCarib, Inc. v. Offshore Supply Ships, Inc., 168 F.3d 227, 230 (5th Cir.1999) (“[b]reach of a time charter by the owner gives rise to a maritime hen as long as the vessel has been delivered to the charterer and the contract is no longer executory ” (emphasis added)); E.A.S.T., Inc. of Stamford v. M/V ALAIA 876 F.2d 1168, 1174 (5th Cir.1989) (executory contract doctrine “precludes the creation of a maritime hen for breach of a contract that is merely executory” as a “maritime hen is based ... on the fiction that the vessel may be a defendant in a breach of contract action when the vessel itself has begun to perform under the contract” (emphasis in original)); Belvedere v. Compania Ploman De Vapores, 189 F.2d 148 (5th Cir.1951) (no in rem claim for failure to transport cargo where voyage not completed because of engine trouble, because no cargo was loaded and vessel was never ready to receive it at the loading port). The executory contract rule applies to contracts for passage aboard vessels; and if “the vessel repudiates the contract before passengers have boarded ... there is no lien for return of prepaid passage money”. Sohoenbaum at § 9-2. Likewise, Todd Shipyards Corp. v. The City of Athens, 88 F.Supp. 67 (D.Md.1949), held that passengers who had not “boarded the" }, { "docid": "1037840", "title": "", "text": "a judgment in rem. I A shipowner’s lien on earned sub-freights due to a charterer is not created by general maritime law. Inclusion of an express lien clause in the charter of the vessel earning the subfreights is necessary. Ocean Cargo Lines, Ltd. v. North Atlantic Marine Co., 227 F.Supp. 872 (S.D.N.Y.1964); In re North Atlantic and Gulf Steamship Co., 204 F.Supp. 899 (S.D.N.Y.1962), and cases cited therein, affirmed sub nom. Schilling v. A/S D/S Dannebrog, 320 F.2d 628 (2nd Cir. 1963); Gilmore and Black, Admiralty 517, n. 103 (1957). If an express lien clause is included in the charter, the shipowner has a maritime lien on the subfreights from the moment the cargo is loaded on the vessel. Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 290 U.S. 117, 121, 54 S.Ct. 105, 78 L.Ed. 216 (1933); The Saturnus, 250 F. 407, 412, 414 (2nd Cir. 1918), cert. denied sub nom. Midland Linseed Products Company v. The Steamship “Saturnus”, 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1247 (1918); In re North Atlantic and Gulf Steamship Co., 204 F.Supp. at 904; In re Bauer Steamship Corporation, 167 F.Supp. 909, 910 (S.D.N.Y.1957). In the instant case, the time charter contains a clause creating a lien on freights and subfreights. The clause provides: “18. That the Owners shall have a lien upon all cargoes, and all sub-freights for any amounts due under this charter * * * ” By this clause, the Charterer’s lien against the consignees to secure the subfreights is made subject to the Owner’s lien against cargoes and subfreights. In re North Atlantic and Gulf S. S. Co., supra; In re Bauer S. S. Corp., supra. Moreover, the Owner’s lien was not relinquished by this Court’s order directing payment of the subfreights into Court. The Trustee, however, argues that the maritime lien does not extend to all the funds held by this Court. It is his contention that the “present” language contained in the Owner’s notice of withdrawal of November 23, 1965 and the resultant exercise of control over the Admiralty Flyer by the Owner show that" }, { "docid": "7620882", "title": "", "text": "to apply American law. We will follow the charts of the forum in navigating the rough seas ahead. 2. The Maritime Lien The maritime lien is an ancient and unique feature of admiralty doctrine. It arises by operation of law to provide security to the victims of certain maritime torts and contract breaches. See, e.g., The Barnstable, 181 U.S. 464, 21 S.Ct. 684, 45 L.Ed. 954 (1901); The Schooner Freeman v. Buckingham, 59 U.S. (18 How.) 182, 188, 15 L.Ed. 341 (1855); 2 Benedict on Admiralty § 21, at 2 (7th ed. 1983); G. Gilmore & C. Black, The Law of Admiralty Chapter IX (2d ed. 1975) [hereinafter cited as Gilmore & Black]. Plaintiffs bring an action directly against the vessel in rem. If they are victorious on the merits, they may enforce the judgment by condemnation and sale of the ship. See 2 Benedict on Admiralty, supra, § 21, at 2-3. A maritime lien typically arises when the owner has breached its contract with the charterer. See Rainbow Line v. M/V Tequila, 480 F.2d 1024 (2d Cir.1973); Belvedere v. Compania Plomari de Vapores, 189 F.2d 148 (5th Cir.1951). [Cjharterparties must, in the invariable regular course of ... business, be made, for the performance of which the law confers a lien on the vessel. Rainbow Line, 480 F.2d at 1027 (quoting The Schooner Freeman v. Buckingham, 59 U.S. (18 How.) at 190, 15 L.Ed. 341). The charterer may enforce its contract through an action in rem. The vessel may also become open to maritime liens if the owner (or his Master) accepts cargo on board and signs a bill of lading evidencing a contract of affreightment with the shipper. Breach of that contract (e.g., by the loss of the cargo during the voyage) would subject the ves sel to in rem liability. See The Capitaine Faure, 10 F.2d 950, 954, 961 (2d Cir.1926); Tube Products of India v. S.S. Rio Grande, 334 F.Supp. 1039, 1041 (S.D.N.Y.1971); W. Poor, American Law of Charter Parties and Ocean Bills of Lading § 10, at 33 (1968) [hereinafter cited as Poor on Charter Parties];" }, { "docid": "6418588", "title": "", "text": "ed. 1976). Therefore, the critical question is this: When did the contract for affreightment become executed? The answer can be determined by examining the authorities dealing with a ship’s lien on the cargo for freight. Maritime law affords a ship such a lien unless it is displaced by an inconsistent provision in the charter party. The Eddy, 72 U.S. (5 Wall.) 481, 493-94, 18 L.Ed. 486 (1866). The existence of this lien depends on an executed contract of affreightment; the ship cannot assert a lien for the breach of an executory contract. Execution of the affreightment contract occurs when the cargo is delivered to the ship. Bulkley v. Naumkeag Steam Cotton Co., 65 U.S. (24 How.) 386, 393-94, 16 L.Ed. 599 (1860); G. Gilmore & C. Black, The Law of Admiralty § 9-22 at 637 (2d ed.1975). If the contract is only partially performed, the lien attaches to the extent that the cargo has been delivered. See Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 43 S.Ct. 172, 67 L.Ed. 364 (1923); G. Gilmore & C. Black, The Law of Admiralty § 9-23 at 639 (2d ed.1975); 1 Benedict, Admiralty § 185 at 11-16 (7th ed.1974). These principles of maritime law and the undisputed facts establish that as of May 9, when the second writ of garnishment was served, the contract of affreightment had been partially executed, and the vessel had a lien on the 3,456 tons of meal that had been loaded. We therefore conclude that since the contract was partially executed, the writ effectively garnisheed the freight on the loaded cargo. The partial execution of the contract was sufficient to sustain the garnishment even though the bills of lading had not yet been delivered and the debt was unmatured. Cf. San Rafael Compania Naviera v. American Smelting & Refining Co., 327 F.2d 581 (9th Cir. 1964) (writ served June 5 validly attached freight payable June 11); see 7A Moore’s Federal Practice ¶B.05 at B-207 (2d ed. 1976). The recognition that a contract which is executed for the purpose of perfecting a vessel’s lien for freight" }, { "docid": "6418589", "title": "", "text": "G. Gilmore & C. Black, The Law of Admiralty § 9-23 at 639 (2d ed.1975); 1 Benedict, Admiralty § 185 at 11-16 (7th ed.1974). These principles of maritime law and the undisputed facts establish that as of May 9, when the second writ of garnishment was served, the contract of affreightment had been partially executed, and the vessel had a lien on the 3,456 tons of meal that had been loaded. We therefore conclude that since the contract was partially executed, the writ effectively garnisheed the freight on the loaded cargo. The partial execution of the contract was sufficient to sustain the garnishment even though the bills of lading had not yet been delivered and the debt was unmatured. Cf. San Rafael Compania Naviera v. American Smelting & Refining Co., 327 F.2d 581 (9th Cir. 1964) (writ served June 5 validly attached freight payable June 11); see 7A Moore’s Federal Practice ¶B.05 at B-207 (2d ed. 1976). The recognition that a contract which is executed for the purpose of perfecting a vessel’s lien for freight is also executed for the purpose of garnisheeing the freight does not prejudice either the shipper or the vessel. Pursuant to Supplemental Rule B(3)(a) the shipper can retain the freight, subject to the order of the court, or pay it into the registry of the court to discharge the lien, and the vessel then can assert such rights as it may have to recover the deposit. We believe the district court erred when it ruled that “because numerous contingencies could have occurred which would have excused garnishee’s [Soya’s] performance under the voyage charter . . . ” the contract was still executory on May 9. Su-matrop and Soya did not plead that any such contingencies existed or were likely to occur, and the record discloses none. The court did not specify the contingencies to which it referred, and it cited no authority for its ruling. Indeed, the charter party itself dispels any notion that contingencies arising from the strike would excuse Soya’s performance. It provides that the vessel is to have a lien on the" }, { "docid": "6895038", "title": "", "text": "for a cause of action in admiralty, upon the fulfifiment of certain elements. We, therefore, follow the Supreme Court's lead in Tallentire and conclude that the Maritime Lien Act supplies a basis for admiralty jurisdiction independent from those bases available at common law. In so interpreting the Maritime Lien Act, we neither add nor subtract from what Congress passed into law. Specifically, we hold Ventura Packers must demonstrate that: (1) it provided necessaries; (2) to a vessel; (3) by order of the owner or a person authorized by the owner. See Robert E. Derecktor, Inc. v. Norkin, 820 F.Supp. 791, 792 (S.D.N.Y.1993) (\"The district courts have subject matter jurisdiction ... by ... 46 U.S.C. § 31342, which provides for maritime suits for failure to pay for necessaries to be provided to a vessel.\"). If Ventura Packers demonstrates these elements, it may invoke the admiralty jurisdiction of the federal courts to enforce a necessaries lien in rem. B. A Maritime Contract Is Not Needed To Invoke Admiralty Jurisdiction Pursuant to the Maritime Lien Act. The Owners argue that Ventura Packers must establish the common law requirement of a maritime contract before it can invoke the admiralty jurisdiction of the district court to enforce a necessaries lien. We disagree. Although a maritime contract may support admiralty jurisdiction, it is not an essential prerequisite to a civil action in admiralty to enforce a statutory necessaries lien. In general, maritime liens, including necessaries liens, exist to keep ships moving in commerce, while preventing them from sailing away from the debts they incur. The theoretical basis for the maritime lien rests on the legal fiction that the ship itself caused the loss and may be called into court to make good. Maritime liens arise for the unpaid provision of necessaries, breaches of maritime contracts, unpaid seaman's wages, unpaid cargo freight, preferred ship mortgages, as well as in other circumstances. See 1 Thomas J. Schoenbaum, Admiralty & Maritime Law 496-98 (3d ed.2001) (listing cognizable maritime liens). Although most maritime liens arise by operation of general maritime law, several are created by statutes, such as the Maritime" }, { "docid": "12412019", "title": "", "text": "U.S. at 275, 60 S.Ct. at 941; Gilmore & Black, Admiralty (1957), at 566. It thus must be a fortiori sufficient to prevent the purchaser of fuel from creating a lien in the charterer himself, whether this is claimed directly- — in the teeth of his agreement to provide the fuel himself— or by subrogation to the rights of a third-party supplier. See Pensacola Shipping Co. v. United States Shipping Board, 277 F. 889, 893 (5 Cir. 1922). The trustee also argues that even if a lien did not arise when the fuel was procured for the vessels, one sprang into existence when they were turned back with fuel on board, in view of the owners’ contractual obligation to pay for the fuel at that point. This position might seem supported by the statements in Gilmore & Black, supra, that “Most, but not all, maritime claims give rise to liens,” at 512, and, more specifically, that “liens arise for breach of charter-party in either direction. The charterer has a lien on the vessel for owner’s breach; the owner may have a lien on cargo and sub-freights for charterer’s breach * * At 517. It has the important backing of Judge Hough’s decision in The Oceano, 148 F. 131 (S.D.N.Y.1906), recognizing a lien for a charterer’s advances for a vessel’s disbursements where the advances by error had not been deducted from the charter hire, and stating, 148 F. at 133, that “As soon as the performance of a charter party is commenced a lien exists on the vessel in favor of the shipper or charterer, and a suit in rem may be maintained for any liability of the master or owner arising therefrom. * * * Damages sustained by a charterer through breach •of a charter contract constitute a lien on the vessel. * * * It cannot be denied that unless explicitly excluded by the contract of charter party both shipper and owner may pursue their remedies for breach of contract by actions in rem.” We thus do not find the absence of an •explicit charter provision conferring a lien" }, { "docid": "13331273", "title": "", "text": "if the owner defaults”; rather, a maritime lien converts the vessel itself into the obligor and allows an injured party to proceed directly against it through an in rem proceeding. Id. (citation omitted). A maritime lien may arise in contract or in tort, see, e.g., Chase Manhattan Fin. Servs., Inc. v. McMillian, 896 F.2d 452, 456 (10th Cir.1990), and a plaintiff may bring a personal injury action in rem against a vessel “as in other cases where a maritime lien arises,” The City of Panama, 101 U.S. 453, 462, 25 L.Ed. 1061 (1880). Rule C of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions provides for an in rem action to enforce a maritime lien. Fed.R.CivJP. Supp. R. C(l)(a). Wherever a maritime lien arises, the plaintiff may proceed in rem in the admiralty to enforce it. Norton v. Switzer, 93 U.S. 355, 356, 23 L.Ed. 903 (1876). If the conditions for an in rem action appear to exist based on the complaint and supporting papers, the court must order the clerk to issue a warrant for the arrest of the vessel. Fed. R.Civ.P. Supp. R. C(l)(a)(i). This requires “a prima facie showing that the plaintiff has an action in rem against the defendant in the amount sued for and that the property [i.e., the vessel] is within the district.” 12 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3222 (2d ed.l982-present) (citation omitted); see also Fed.R.Civ.P. Supp. R. C(2). As one court put it: Whether the maritime lien arises by operation of law from a tort, from the supplying of goods, services and necessaries to a vessel, or from a preferred ship mortgage like those in the present controversy, the maritime lienor has an interest in the vessel herself, and the arrest of the vessel is to enforce that interest, the maritime lien. The action is to enforce a property right in the vessel. Merchants Nat’l. Bank of Mobile v. Dredge Gen. G.L. Gillespie, 663 F.2d 1338, 1346 (5th Cir.1981). Any action in rem for seizure of a vessel must be premised" }, { "docid": "8596048", "title": "", "text": "and allows injured parties to proceed against it directly. Amstar Corp. v. S/S ALEXANDROS T, 664 F.2d 904, 908-09 (4th Cir.1981). This is called an in rem proceeding. “An in rem suit against a vessel is ... distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts.” Belle of Orleans, 535 F.3d at 1314 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 446-47, 114 S.Ct. 981, 985, 127 L.Ed.2d 285 (1994)). Federal district courts obtain in rem jurisdiction over a vessel when a maritime lien attaches to it. Industria Nacional Del Papel, CA. v. M/V Albert F, 730 F. 2d 622, 625 (11th Cir.1984). Upon filing an in rem complaint, the clerk of court issues a warrant for the arrest of the res. See Merchs. Nat’l Bank v. Dredge Gen. G. L. Gillespie, 663 F.2d 1338, 1340 n. 1 (5th Cir.1981) (quoting Fed.R.Civ.P., Supplemental Rules for Certain Admiralty and Maritime Claims (Rule C)). The res remains in the court’s custody during the proceeding as serves as both the respondent and the subject matter. See 2 Benedict on Admiralty § 21 at 2-6 to 2-8 (7th ed. rev.1998). The Federal Maritime Lien Act, 46 U.S.C. §§ 31341-31343, grants maritime liens to particular persons based on their relationship to, or service of, a vessel. For example, the Act grants a maritime lien to “a person providing necessaries to a vessel.” See id. § 31342(a). The Act then grants maritime lienholders the right to “bring a civil action in rem to enforce the lien.” Id. In other words, “[a] maritime lien gives to its holder a property right in a vessel, and the proceeding in rem is ... a means of enforcing the property right.” See Merchs. Nat’l Bank, 663 F.2d at 1346. A maritime lien cannot be executed or divested outside of an in rem proceeding. Vandewater v. Mills, 60 U.S. 82, 89, 19 How. 82, 15 L.Ed. 554 (1856). Crimson Yachts claims that its repair work on the BETTY LYN II entitles it to a maritime lien. Crimson Yachts sought to enforce this lien by" }, { "docid": "7429539", "title": "", "text": "law is clear that there is a maritime lien for the breach of a charter party, and because the damages sought to be recovered by Rainbow are all of a maritime nature and flow directly from the breach of the charter, it has a maritime lien. The Supreme Court, in dicta, in The Schooner Freeman v. Buckingham, 59 U.S. 182, 190, 15 L.Ed. 341 (1955), stated that “charterparties, must, in the invariable regular course of business, be made, for the performance of which the law confers a lien on the vessel.” The truth of this statement is borne out by the fact that in rem jurisdiction in the admiralty exists only to enforce a maritime lien, The Resolute, 168 U.S. 437, 440, 18 S.Ct. 112, 42 L.Ed. 533 (1897); The Rock Island Bridge, 73 U.S. 213, 215, 18 L.Ed. 753 (1867), and a breach of a charter party is cognizable as an in rem action, Morewood v. Enequist, 64 U.S. 491, 493-494, 16 L.Ed. 516 (1859); therefore, the breach of a charter gives rise to a maritime lien. This court in Schilling v. A/S D/S Dannebrog, 320 F.2d 628, 632-633 (2 Cir. 1963), and the Eros, 251 F. 45 (2 Cir), cert, denied 247 U.S. 509, 38 S.Ct. 578, 62 L.Ed. 1242 (1918), has recognized the existence of such a lien, as have other courts, see, e. g., The Oceano, 148 F. 131, 133 (S.D.N.Y.1906); The Port Adelaide, 59 F. 174, 177 (E.D. N.Y.1893), aff’d as modified on other grounds, 62 F. 486 (2 Cir. 1894), and the commentators, Gilmore & Black, supra, § 9-20, at 517; 1 E. Benedict, The Law of American Admiralty, § 96, at 293-94 (6 ed. 1940); Ray, Maritime Contract Liens, 47 Tul.L.Rev. 587, 597 (1973). In an attempt to show that Rainbow should have no lien, Empire argues the injustice of permitting this “secret lien” which weakens the security interest of the mortgagee. Yet, even if it were possible to ignore the heavy weight of precedent which confirms Rainbow’s right to a lien, Empire’s argument is not persuasive. A maritime lien for breach of" }, { "docid": "12412020", "title": "", "text": "breach; the owner may have a lien on cargo and sub-freights for charterer’s breach * * At 517. It has the important backing of Judge Hough’s decision in The Oceano, 148 F. 131 (S.D.N.Y.1906), recognizing a lien for a charterer’s advances for a vessel’s disbursements where the advances by error had not been deducted from the charter hire, and stating, 148 F. at 133, that “As soon as the performance of a charter party is commenced a lien exists on the vessel in favor of the shipper or charterer, and a suit in rem may be maintained for any liability of the master or owner arising therefrom. * * * Damages sustained by a charterer through breach •of a charter contract constitute a lien on the vessel. * * * It cannot be denied that unless explicitly excluded by the contract of charter party both shipper and owner may pursue their remedies for breach of contract by actions in rem.” We thus do not find the absence of an •explicit charter provision conferring a lien for breach of the owner’s obligation under Clause 3 so persuasive against the trustee as Judge Bryan did — even in the face of the provision in Clause 18 spe•cifically giving the charterer a lien “on the Ship for all monies paid in advance •and not earned. * * * ” Neither do we think that a lien in favor of the charterer for amounts contracted by the owner to be paid for fuel on board at the time of redelivery would be excluded in a proper case by the “Charterers will not suffer” provision of Clause 18 quoted above. For we agree with Judge John R. Brown that the usual prohibition of liens ■clause “does not undertake to deal with the power of the owner himself to subject his vessel to maritime liens,” Roberts v. Echternach, 302 F.2d 370, 372 (5 Cir. 1962)—in that ease also in favor of a charterer. See also New York Trust Co. v. Bermuda-Atlantic S. S. Co., 211 F. 989, 999 (S.D.N.Y.1913). Where the trustee’s case fails is in" }, { "docid": "7620883", "title": "", "text": "1024 (2d Cir.1973); Belvedere v. Compania Plomari de Vapores, 189 F.2d 148 (5th Cir.1951). [Cjharterparties must, in the invariable regular course of ... business, be made, for the performance of which the law confers a lien on the vessel. Rainbow Line, 480 F.2d at 1027 (quoting The Schooner Freeman v. Buckingham, 59 U.S. (18 How.) at 190, 15 L.Ed. 341). The charterer may enforce its contract through an action in rem. The vessel may also become open to maritime liens if the owner (or his Master) accepts cargo on board and signs a bill of lading evidencing a contract of affreightment with the shipper. Breach of that contract (e.g., by the loss of the cargo during the voyage) would subject the ves sel to in rem liability. See The Capitaine Faure, 10 F.2d 950, 954, 961 (2d Cir.1926); Tube Products of India v. S.S. Rio Grande, 334 F.Supp. 1039, 1041 (S.D.N.Y.1971); W. Poor, American Law of Charter Parties and Ocean Bills of Lading § 10, at 33 (1968) [hereinafter cited as Poor on Charter Parties]; 2A Benedict on Admiralty, supra, § 35, at 4-19. In the present case, however, no such bills of lading were issued, and the plaintiffs sue for a breach not of the head charter but of a subcharter to which Aizawa was not privy. Cardinal nevertheless argues that Aizawa entrusted the Seisho Maru to a time charterer and thereby assented to the creation of liens upon the vessel as security for the performance of the charterer’s contracts of affreightment. As the Supreme Court stated in The Schooner Freeman: [W]hen the general owner intrusts the special owner with the entire control and employment of the ship, it is a just and reasonable implication of law that the general owner assents to the creation of liens binding upon his interest in the vessel, as security for the performance of contracts of affreightment made in the course of the lawful employment of the vessel. The general owner must be taken to know that the purpose for which the vessel is hired, when not employed to carry cargo belonging to" }, { "docid": "20701056", "title": "", "text": "RR Caribbean’s in rem action itself. Blue Green asserts that the charter party between it and RR Caribbean did not give rise to a maritime lien, and without a maritime lien, RR Caribbean’s in rem action was unavailable. Blue Green is correct that an in rem action requires the existence of a maritime lien. See Supp. Fed.R.Civ.P. C(l) (2001). In this case, however, the Court has already determined, pursuant to Supplemental Rule C(3)(a)(II)(A), that a maritime lien on the Jumby Bay properly existed. Blue Green’s contention that a maritime lien did not arise, however, because such liens may arise only under the Federal Maritime Lien Act, demonstrates a woeful misunderstanding of the law of maritime liens. A maritime lien may arise in tort or contract, and in contract, it may arise under the Federal Maritime Lien Act or under the general maritime law. Under the general maritime law, a maritime lien arises in favor of a charterer “[i]f a vessel owner breaches a charter party that is at least partially performed .... ” 8 BENEDICT ON ADMIRALTY § 12.01[C][l][d][iii] (7th ed., rev.2000). Blue Green, by delivering the Jumby Bay to RR Caribbean, partially performed its lease agreement, or charter party. Being partially executed, the charter party was capable of giving rise to a maritime lien, and the verified complaint and supporting papers demonstrate that a maritime lien did in fact arise against the Jumby Bay and in favor of RR Caribbean. The verified complaint states the amount owed, and a copy of the charter party is attached. Pursuant to Rule C, the Court issued a warrant for the arrest of the vessel and the United States Marshal arrested the Jumby Bay. The Court’s action and the arrest were entirely proper and mandated by law. B. The Court Has Discretion to Strike Parts of the Answer and to Enter Default. RR Caribbean argues that default is appropriate, because Blue Green’s failure to file a “verified claim” to the Jumby Bay within the time limit set by Supplemental Rule C(6) denied it standing to answer for the defendant res, the Jumby Bay." }, { "docid": "7429543", "title": "", "text": "of a time charter and removes it from executory status, The Oceano, 148 F. 131, 133 (S.D.N.Y.1906) ; G. Gilmore & C. Black, The Law of Admiralty, § 9-22, at 521 (1957) ; and, although it would not matter in this case, we disagree with the court in Belvedere v. Compania Plomari De Vapores, S.A., 189 F.2d 148 (5 Cir. 1951), to the extent that it felt that a time charter was executory until the first cargo was loaded. . Empire argues that even if there is generally a maritime lien for breach of charter, there is none for the specific claims made by Rainbow. For example, Empire states that because a supplier of necessities would not have a lien in this case, then Rainbow should not have one either. Empire misses the point, however, that Rainbow is not suing merely as the subrogee of the supplier but as a party injured by a direct breach of the charter. . Under American ship mortgage law, the mortgagor runs the risk of criminal penalties and civil damages for failure to disclose to the mortgagee the existence of any maritime liens known to him, 46 U.S.C. §§ 924, 941(b), (c)." }, { "docid": "20701061", "title": "", "text": "extension of time. Under the most charitable view of the circumstances, the Court cannot find excusable neglect in this case. III. CONCLUSION The Court will deny Blue Green’s motion for an extension of time. The Court will grant RR Caribbean’s motion to strike Blue Green’s answer as it pertains to the in rem action and enter default against the Jumby Bay. . Substantial amendments to Supplemental Rule C went into effect on December 1, 2000. Inexplicably, neither party cited to the amended rules. . Supplemental Rule C(l) states in relevant part An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto. .In a maritime action in rem, \"the court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for arrest of the vessel _\" Supp. Fed. R.Civ.P. C(3)(a)(ii)(A) (2001). .See International Marine Towing, Inc. v. Southern Leasing Partners, Ltd., 722 F.2d 126, 131 (5th Cir.1983) (charterer is entitled to maritime lien against vessel for owner’s breach of charter party), cert. denied, 469 U.S. 821, 105 S.Ct. 94, 83 L.Ed.2d 40 (1984); Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 1027 (2d Cir.1973) (\"The American law is clear that there is a maritime lien for the breach of a charter party, and because the damages sought to be recovered by [the charterer] are all of a maritime nature and flow directly from the breach of the charter, it has a maritime lien.”). . A charter party is a contract for lease of a vessel. An executory contract for lease of a vessel, or unexecuted charter party, does not give rise to a maritime lien. See 8 BENEDICT ON ADMIRALTY § 12.01 [C][l][c]. . Supplemental Rule C(6) was updated in December, 2000, and the term \"verified claim” was replaced by the phrase \"verified statement of right or interest.” See Supp. Fed. R.Civ.P. C(6)(b) (2001). ." }, { "docid": "1037839", "title": "", "text": "attorney for the Trustee. The “special admiralty counsel” to the attorney for the Trustee was also advised that he had 10 days to submit additional testimony; but he declined to do so. The arbitration award, rendered on June 26, 1967, determined, inter alia, (1) that the Owner was entitled to withdraw the Admiralty Flyer; and (2) that the Owner sustained net damages of $40,-605.95. In opposition to the motion to release the subfreights to the Owner, the Trustee argues (1) that there is no maritime lien covering all the subfreights held by the Court; (2) that even if there is a valid maritime lien, transfer to the Owner of the funds held by the Court would run afoul of either Bankruptcy Act § 67(a), 11 U.S.C. § 107(a), or Bankruptcy Act § 60, 11 U.S.C. § 96; and (3) that an arbitration award rendered between the Owner and the Charterer cannot determine rights in rem in the subfreights held by the Court, and, therefore, cannot be adopted by an admiralty court as the basis of a judgment in rem. I A shipowner’s lien on earned sub-freights due to a charterer is not created by general maritime law. Inclusion of an express lien clause in the charter of the vessel earning the subfreights is necessary. Ocean Cargo Lines, Ltd. v. North Atlantic Marine Co., 227 F.Supp. 872 (S.D.N.Y.1964); In re North Atlantic and Gulf Steamship Co., 204 F.Supp. 899 (S.D.N.Y.1962), and cases cited therein, affirmed sub nom. Schilling v. A/S D/S Dannebrog, 320 F.2d 628 (2nd Cir. 1963); Gilmore and Black, Admiralty 517, n. 103 (1957). If an express lien clause is included in the charter, the shipowner has a maritime lien on the subfreights from the moment the cargo is loaded on the vessel. Krauss Bros. Lumber Co. v. Dimon S. S. Corp., 290 U.S. 117, 121, 54 S.Ct. 105, 78 L.Ed. 216 (1933); The Saturnus, 250 F. 407, 412, 414 (2nd Cir. 1918), cert. denied sub nom. Midland Linseed Products Company v. The Steamship “Saturnus”, 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1247 (1918); In re North Atlantic" }, { "docid": "18103943", "title": "", "text": "” (emphasis added)); E.A.S.T., Inc. of Stamford v. M/V ALAIA 876 F.2d 1168, 1174 (5th Cir.1989) (executory contract doctrine “precludes the creation of a maritime hen for breach of a contract that is merely executory” as a “maritime hen is based ... on the fiction that the vessel may be a defendant in a breach of contract action when the vessel itself has begun to perform under the contract” (emphasis in original)); Belvedere v. Compania Ploman De Vapores, 189 F.2d 148 (5th Cir.1951) (no in rem claim for failure to transport cargo where voyage not completed because of engine trouble, because no cargo was loaded and vessel was never ready to receive it at the loading port). The executory contract rule applies to contracts for passage aboard vessels; and if “the vessel repudiates the contract before passengers have boarded ... there is no lien for return of prepaid passage money”. Sohoenbaum at § 9-2. Likewise, Todd Shipyards Corp. v. The City of Athens, 88 F.Supp. 67 (D.Md.1949), held that passengers who had not “boarded the ship for transportation” did not have a maritime lien against the ship for nonperformance of transportation obligations. [E]ven if we assume that a common carrier may be sued in tort for failure to fulfill an executory obligation to a passenger, who did not come within the care or control of the carrier[J ... it does not follow that a breach of such executory contract creates a lien in rem. Thus it may well be that the shipowner in the present case may be sued in tort by the prospective passengers either in the civil courts or even in personam in admiralty, but they have no maritime lien to enforce in rem against the ship. The shipowner, and not the ship as an entity, is the common carrier. The obligation to transport passengers either in accordance with a previous contract or advertised schedule is not the obligation of the vehicle used for transportation, but of the owner or operator of the vehicle. Id. at 76 (internal citations omitted). It noted the detrimental effect granting passengers maritime" }, { "docid": "7429542", "title": "", "text": "383 (1970) ; G. Gilmore & C. Black, The Law of Admiralty, § 9-51, at 578 (1957). . Even if Nadie takes priority over Rainbow, there is enough in the fund to pay both in full. . Of course, the parties may agree between themselves that in the event of a breach, no such lien will arise, but this cannot adversely affect the rights of third persons. . For examine, there is authority for the proposition that a lien for supplies furnished the vessel should be determined by the law of the place of the transaction, see The Scotia, 35 F. 907, 909 (SJD.N.Y. 1888). . There is no lien if the charter party is merely executory, The Saturnus, 250 F. 407, 408 (2 Cir.) cert. denied 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1247 (1918) ; The Yalmar, 38 F.Supp. 618, 620 (E.D. Pa.1941), but in the present case the vessel had been delivered to the charterer for some ten months and cargoes had been carried. Delivery of the vessel commences the performance of a time charter and removes it from executory status, The Oceano, 148 F. 131, 133 (S.D.N.Y.1906) ; G. Gilmore & C. Black, The Law of Admiralty, § 9-22, at 521 (1957) ; and, although it would not matter in this case, we disagree with the court in Belvedere v. Compania Plomari De Vapores, S.A., 189 F.2d 148 (5 Cir. 1951), to the extent that it felt that a time charter was executory until the first cargo was loaded. . Empire argues that even if there is generally a maritime lien for breach of charter, there is none for the specific claims made by Rainbow. For example, Empire states that because a supplier of necessities would not have a lien in this case, then Rainbow should not have one either. Empire misses the point, however, that Rainbow is not suing merely as the subrogee of the supplier but as a party injured by a direct breach of the charter. . Under American ship mortgage law, the mortgagor runs the risk of criminal penalties and civil" } ]

[ { "docid": "4898204", "title": "", "text": "an overpass. The five most important entities in this story are: 1. White Horse Machinery Ltd. (“White Horse”), who is not a party to this case. White Horse was the exporter and shipper of the printing press. 2. Royal & Sun Alliance Insurance, PLC (“Royal & Sun”), who is the Plaintiff-Appellant. Royal & Sun insured White Horse’s shipment and became subrogated to its rights. 3. Ocean World Lines, Inc. (“OWL”), who is the DefendanL-Third-PartyPlaintiff-Appellee. OWL is the non-vessel-operating common carrier (“NVOCC”) that issued a bill of lading to White Horse, promising delivery to the consignee via shipping and carriage that OWL would arrange. 4. Yang Ming Marine Transport Corp. (“Yang Ming”), who is one of the two Third-Party-Defendants-Appellees. Yang Ming, a vessel-operating common carrier (“VOCC”), is the owner of the vessel that took the printing press across the ocean in the first leg of the journey. Yang Ming issued a sea waybill to OWL. 5. Djuric Trucking, Inc. (“Djuric”), who is the other Third-Party-Defendant-Appellee. Djuric is the owner of the truck which carried the printing press during the third leg of the trip, and which crashed into an overpass, damaging the printing press. Djuric did not issue its own bill of lading. A. The Course of the Shipment On June 15, 2006, OWL issued a bill of lading to White Horse. The bill of lading described the printing press, and provided that seven packages consisting of the printing press would be shipped from Bremerhaven, Germany, to Bourbon, Indiana. The transport was to be inter-modal. OWL, being a NVOCC, is a middleman that does not own and operate its own vessels. Instead, it enters into service contracts whereby it purchases large blocks of cargo space at a discount from vessel-operating common carriers (VOCCs). It then contracts with shippers to ship smaller amounts of cargo in that space. In this particular instance, OWL’s bill of lading provided that the shipment would go to Norfolk, Virginia, on the MTV Yang Ming Milano, owned by the VOCC Yang Ming. Final delivery was to be made thereafter in Bourbon, Indiana. On June 16, 2006, the" } ]

[ { "docid": "8307804", "title": "", "text": "sub nom. Nipponkoa Ins. Co., Ltd. v. Norfolk S. Ry. Co., 394 Fed.Appx. 751 (2d Cir.2010) (summary order); Sompo Japan Ins. Co. of Am. v. Yang Ming Marine Transp. Corp., 578 F.Supp.2d 584 (S.D.N.Y.2008), abrogated in part by Rexroth Hydraudyne B.V. v. Ocean World Lines, Inc., 547 F.3d 351 (2d Cir.2008); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 553 F.Supp.2d 348 (S.D.N.Y.2008); Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co., 540 F.Supp.2d 486 (S.D.N.Y.2008). The relevant facts are described in detail in those opinions, particularly in this Court’s March 20, 2008 decision, see Sompo 540 F.Supp.2d at 488-91, and are not disputed. Familiarity with those opinions is assumed, and the facts and procedural history of these cases, to the extent they have been previously discussed, will be repeated here only to the extent necessary for an understanding of the issues. A. Facts 1. Sompo-Insured Cargo Sompo’s insureds include Kubota Tractor Corporation (“Kubota”), Hoshizaki Electric Co., Ltd. (“Hoshizaki”), Canon, Inc. (“Canon”), and Unisia of Georgia Corporation (“Unisia”), each acting as consignee and “notify party” for manufacturer and shipper Hitachi, Ltd. (“Hitachi”). (See Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 5, 20, 28, 35, 41, 44; Ex. 24 to Decl. of Charles L. Howard in Supp. of Defs.’ Mot. for Summ. J. in Sompo (“Howard Sompo Decl.”)). Transport of the insured cargo involved several carriers and different types of goods being shipped from Japan and China to various locations in the state of Georgia. Kubota hired Yang Ming Marine Transport Corporation (“Yang Ming”), an ocean carrier, for the shipment of tractors from Japan to Jefferson, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 24-25; Howard Sompo Decl. Exs. 3, 9), Canon engaged Nippon Yusen Kaisha (“NYK”), also an ocean carrier, for the carriage of copiers from China to Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 32-33; Howard Sompo Decl. Exs. 8, 10). Hoshizaki employed Sumitrans Corporation (“Sumitrans”), a non-vessel operating common carrier (“NVOCC”), for the transport of appliances from Japan to Griffin, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶" }, { "docid": "8307836", "title": "", "text": "the Kubota, Canon, and Hoshizaki shipments are dismissed. In addition, defendants’ motions and plaintiffs’ cross motions for summary judgment are denied in Nipponkoa Ins. Co. v. Norfolk S. Ry. Co., No. 07 Civ. 10498(DC). SO ORDERED. . In this decision, I refer to Sompo's case against defendants as Sompo and Nipponkoa's case against defendants as Nipponkoa. . Norfolk Southern Corporation, a holding company and parent corporation of Norfolk Southern Railway Company, is named as a defendant only in Sompo. .Defendants’ Rule 56.1 Statement indicates that the final destination for the shipment was Georgia. (Defs.’ Rule 56.1 Statement ¶ 32). The bill of lading, however, identifies Long Beach, California, as the \"place of delivery.\" (Howard Sompo Decl. Ex. 8). Sompo does not dispute that Georgia was the final destina tion for the goods. (See Sompo's Resp. to Defs.’ Rule 56.1 Statement ¶ 32). See also Sompo, 540 F.Supp.2d at 489 & n. 1. . An NVOCC provides transportation for hire and assumes liability for the goods it agrees to ship but does not undertake actual transportation of the goods or operation of the vessel on which the goods are transported. Royal & Sun Alliance Ins., PLC v. Ocean World Lines, Inc., 612 F.3d 138, 140 n. 2 (2d Cir.2010) (citing 1-1 Saul Sorkin, Goods in Transit § 1.15(8)). It issues a bill of lading to the shipper and delivers the shipment to another carrier for transportation. Id: . Yang Ming issued multiple bills of lading to Kubota — one for each container of cargo in the shipment. (See Howard Sompo Decl. Ex. 3). . Although it appears the Second Circuit only remanded plaintiffs’ additional claims, see Nipponkoa, 394 Fed.Appx. at 752, defendants, nevertheless, move for summary judgment with respect to plaintiffs' claims under the Carmack Amendment (see Defs.' Mem. in Sompo at 8; Defs.' Mem. in Nipponkoa at 8). To avoid any doubt, I briefly address those claims here. . Here, only Yang Ming and NYK contracted with defendants. Yang Ming performed as both an original carrier and an intermediary carrier, as hired by Sumitrans and Nippon Express. NYK performed as" }, { "docid": "8307812", "title": "", "text": "upstream carrier or intermediary upstream carrier and not the shipping party, they cannot be sued by plaintiffs. Defendants also contend that these covenants not to sue apply to them through so-called “Himalaya Clauses” in each bill of lading that extend such liability limitations to downstream parties, such as defendants, contracted to complete carriage of the goods. Plaintiffs argue that the Nippon Express bill of lading contains no such covenant not to sue and that the Yang Ming bill of lading is ambiguous and should be construed so as not to include a covenant not to sue. Plaintiffs further assert that, regardless, all such covenants in the four governing bills of lading are void under the Harter Act. See 46 U.S.C. § 30702 et seq. For the reasons that follow, I hold that the relevant terms of the Yang Ming bill of lading constitute an agreement by plaintiffs’ insured not to sue any party other than the carrier that issued the bill. I further hold that the Nippon Express bill of lading is ambiguous with respect to such a liability limitation. Moreover, I conclude that such liability limitations that restrict suit by plaintiffs’ insureds to the carrier that issued the bill are valid and enforceable. 1. Interpretation of the Bills of Lading a. Applicable Law A multi-modal bill of lading requiring “substantial carriage of goods by sea” is a maritime contract. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 27, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (“[S]o long as a bill of lading requires substantial carriage of goods by sea, ... it is a maritime contract. Its character as a maritime contract is not defeated simply because it also provides for some land carriage.”). Federal law controls the interpretation of maritime contracts when “the dispute is not inherently local.” Id. at 22-23, 125 S.Ct. 385. Generally, “contracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties.” Id. at 31, 125 S.Ct. 385. Potential ambiguities should be interpreted to give “reasonable and effective meaning" }, { "docid": "8307822", "title": "", "text": "carrier, such as a rail carrier, to be a separate entity from the “Carrier” and not interchangeable for liability purposes. Like Section 4.2, however, the bill’s definition of “Carrier” contravenes this provision. Second, Section 7.3(b) also directs that liability during the inland carriage of goods shall be determined in accordance with the inland carrier’s contract of car riage. Here, Nippon Express, as an NVOCC, engaged Yang Ming to perform the physical shipment of the goods. Yang Ming hired NSR for the relevant portion of inland carriage pursuant to the standing ITA executed between NSR and Yang Ming. See Background Section (A), supra. The ITA incorporates by reference NSR’s Intermodal Transportation Rules Circular No. 2. (See Howard Sompo Decl. Ex. 13 at NSGENL 0001). Section 8.3.3© of the Circular states that “[NSR] will not be liable for any loss, damage, or delay to lading to any party other than the Rail Services Buyer” and that it “will not be under any obligation to process any claim by any person other than the Rail Services Buyer.” (Id. Ex. 25 at NSGENL 0024). As the party with whom NSR contracted, Yang Ming is the “Rail Services Buyer,” not plaintiffs’ insureds. (See id. Ex. 13). Therefore, the ITA, as the applicable contract for inland carriage under Section 7.3(b) of the Nippon Express bill of lading, evidences the intent of at least the defendants that, under the present shipping arrangement, plaintiffs only look to Nippon Express in seeking damages for the cargo. Finally, I note that industry practice and custom regarding multimodal through bills of lading may be relevant in determining the intent of the parties here. See Christiania Gen. Ins. Corp. of N.Y. v. Great Am. Ins. Co., 979 F.2d 268, 274 (2d Cir.1992). The Supreme Court in Kirby acknowledged the “popularity of ‘through’ bills of lading, in which cargo owners can contract for transportation across oceans and to inland destinations in a single transaction” instead of having “to negotiate a separate contract — and to find an American railroad itself — for the land leg.” 543 U.S. at 25-26, 125 S.Ct. 385. To" }, { "docid": "16713489", "title": "", "text": "is ordinarily the ‘one who first contracts to transport the shipment’, because it is that carrier ‘with which the shipper does business and to which it looks.’” Id. at *4 n. 7 (quoting U.S. v. Miss. Valley Barge Line Co., 285 F.2d 381, 393 (8th Cir.1960)). Ultimately, Carmack’s application to the shipment at the point where the damage occurred— and not the character of the carrier — was paramount to the Kyodo court. Id. at **4-5; see Canon USA, Inc. v. Nippon Liner Sys., Ltd., No. 90 Civ. 7350, 1992 WL 82509, at *8 (N.D.Ill. Apr.17, 1992) (concluding that an ocean carrier that issued a through bill of lading was a “receiving carrier” under Carmack, and could be held liable for damage occurring during the domestic trucking leg of a trip); see also Project Hope v. M/V IBN SINA, 250 F.3d 67, 76 (2d Cir.2001) (concluding that an NVOCC and a motor carrier could be held jointly and severally liable under Car-mack for spoilation of drugs during the motor leg of transport); Miss. Valley Barge Line, 285 F.2d at 393 (concluding that a barge line was the contracting carrier and the initial and receiving rail carrier under a previous version of Carmack). The Kyodo court’s reasoning is persuasive. While Yang Ming may not be the “delivering rail carrier,” as Sompo argues, it is plausible, based on the complaint, that Yang Ming is the “receiving rail carrier,” because it took delivery of the cargo in Japan and arranged for transfer to the railroad operators in Long Beach. (See Compl. ¶¶ 6, 12, 17). Although there is no specific definition of “receiving rail carrier” in the statute, as there is for “delivering rail carrier,” the common sense meaning of “receiving rail carrier” is an entity providing rail transportation for compensation that receives the cargo from the shippers or, alternatively, arranges for it to be received by the railroad operator. Therefore, under Rule 12(b)(6)’s plausibility standard, Yang Ming may alternatively be held liable under Carmack because it is a receiving rail carrier. Additionally, the conclusion that Yang Ming is subject to Carmack in" }, { "docid": "8307807", "title": "", "text": "where it transferred the containers to defendant Norfolk Southern Railway Company (“NSR”) for the final leg of inland carriage. Id. Both NYK and Yang Ming had retained NSR to provide rail transportation of goods pursuant to general agreements, known as an Intermodal Transportation Agreements (“ITAs”), previously executed in 2003 and 2004, respectively. Id. (See also Howard Sompo Decl. Exs. 13-14). The train carrying the containers was operated by defendant Kansas City Southern Railway Company (“KCSR”) on behalf of NSR’ pursuant to an agreement between NSR and KCSR. Sompo, 540 F.Supp.2d at 490 n. 2. 2. Nipponkoa-Insured Cargo Nipponkoa insured the shipment of auto parts manufactured by Enplas Corporation (“Enplas”) and engine parts manufactured by Fuji OOZX Inc. (“Fuji”) from Japan to locations in Georgia and Tennessee. (See Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 4-6, 20, 30). Enplas and Fuji each hired Nippon Express to transport their respective goods. (Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶ 7; Exs. 2, 4, 6 to Decl. of Charles L. Howard in Supp. of Defs.’ Mot. for Summ. J. in Nipponkoa (“Howard Nipponkoa Decl.”)). Nippon Express issued bills of lading to both Enplas and Fuji and, in turn, contracted Yang Ming to execute shipment of the goods. (Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 7-8; Howard Nipponkoa Decl. Exs. 2-6). The cargo was transported to the Port of Long Beach, California aboard the same vessel as the Sompo-insured cargo shipped by Yang Ming. (See Howard Nipponkoa Decl. Exs. 2, 4). From there, the inland carriage of the goods, including transfer to NSR in Dallas, was identical to that of the Sompoinsured cargo described in the above section. (See Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 10-12). B. Procedural History On September 10, 2009, this Court granted summary judgment to plaintiffs on their claims under the Carmack Amendment. See Sompo, 652 F.Supp.2d at 546. This Court based its decision on Second Circuit precedent holding that the Car-mack Amendment applied “to the domestic inland portion of a foreign shipment regardless of the shipment’s point of origin.” Sompo Japan Ins. Co. of Am." }, { "docid": "8307817", "title": "", "text": "plaintiffs’ favor in the context of liability would render Section 4(2) “useless or inexplicable.” Hartford Fire Ins. Co., 230 F.3d at 558. Moreover, under the present shipping arrangement, there can be no question that the Carrier “on whose behalf this [bill of lading] was issued” (see Howard Sompo Decl. Ex. 9 at Section 1(3) (definition of “Carrier”) (emphasis added)) was indeed Yang Ming and not NSR or KCSR and that plaintiffs’ insureds understood as much in hiring Yang Ming to transport their goods. Accordingly, I hold that Section 4(2) of the Yang Ming bill of lading constituted an express agreement by plaintiffs not to sue any entity other than Yang Ming, including the defendant rail carriers, for damage to the goods in question. ii. Nippon Express Bill of Lading Unlike the Yang Ming bill of lading, the Nippon Express bill is ambiguous and susceptible to different interpretations as to what entities may be sued under its terms. Therefore, I deny the parties’ cross-motions for summary judgement on claims arising from the Nippon Express shipments — specifically, the Hitachi/Unisia shipment in Sompo and the Enplas and Fuji shipments in Nipponkoa. We begin with the plain language of the bill of lading. See Kirby, 543 U.S. at 31-32, 125 S.Ct. 385. Section 4.2 of the Nippon Express bill of lading provides the following: The Carrier shall be responsible for the acts and omissions of its agents or servants when, such agents or servants are acting within the scope of their employment as if such acts and omissions were its own and also shall be responsible for the acts and omissions of any other persons whose services it makes use of in the performance of the contract evidenced by this bill of Lading. (Howard Sompo Decl. Ex. 11). Section 1(a) of the bill defines “Carrier” as follows: “Carrier” means Nippon Express U.S.A. (Illinois), Inc., the underlying Carrier, the ship, her owner, Master, operator, demise charterer and if bound thereby, the time charterer and any substitute carrier, whether, the owner, operator, charterer or Master shall be acting as carrier or bailee, as well as" }, { "docid": "8307806", "title": "", "text": "13-14; Howard Sompo Decl. Exs. 7, 12). And finally, Hitachi, through its consignee, Unisia, contracted Nippon Express U.S.A. (Illinois) (“Nippon Express”), also an NVOCC, for the shipment of auto parts from Japan to Monroe, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 3EM0; Howard Sompo Decl. Exs. 5, 11). Yang Ming, NYK, Sumitrans, and Nippon Express each issued a bill or several bills of lading to its respective customer. (Howard Sompo Decl. Exs. 3, 5, 7-12). Both Sumitrans and Nippon Express, subsequently engaged Yang Ming to execute shipment of the Hoshizaki appliances and Hitachi auto parts. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 17, 4i). The cargo was transported by ship to California where it was discharged in the Port of Long Beach and placed on rail lines owned and operated by Burlington Northern Santa Fe Railway Company (“BNSF”). Sompo, 540 F.Supp.2d at 489-90. Each waybill generated by BNSF listed either Yang Ming or NYK as the shipper and consignee of the goods. Id. at 490. BNSF carried the cargo to Dallas, Texas, where it transferred the containers to defendant Norfolk Southern Railway Company (“NSR”) for the final leg of inland carriage. Id. Both NYK and Yang Ming had retained NSR to provide rail transportation of goods pursuant to general agreements, known as an Intermodal Transportation Agreements (“ITAs”), previously executed in 2003 and 2004, respectively. Id. (See also Howard Sompo Decl. Exs. 13-14). The train carrying the containers was operated by defendant Kansas City Southern Railway Company (“KCSR”) on behalf of NSR’ pursuant to an agreement between NSR and KCSR. Sompo, 540 F.Supp.2d at 490 n. 2. 2. Nipponkoa-Insured Cargo Nipponkoa insured the shipment of auto parts manufactured by Enplas Corporation (“Enplas”) and engine parts manufactured by Fuji OOZX Inc. (“Fuji”) from Japan to locations in Georgia and Tennessee. (See Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 4-6, 20, 30). Enplas and Fuji each hired Nippon Express to transport their respective goods. (Nipponkoa’s Resp. to Defs.’ Rule 56.1 Statement ¶ 7; Exs. 2, 4, 6 to Decl. of Charles L. Howard in Supp. of Defs.’ Mot. for" }, { "docid": "8307813", "title": "", "text": "to such a liability limitation. Moreover, I conclude that such liability limitations that restrict suit by plaintiffs’ insureds to the carrier that issued the bill are valid and enforceable. 1. Interpretation of the Bills of Lading a. Applicable Law A multi-modal bill of lading requiring “substantial carriage of goods by sea” is a maritime contract. See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 27, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004) (“[S]o long as a bill of lading requires substantial carriage of goods by sea, ... it is a maritime contract. Its character as a maritime contract is not defeated simply because it also provides for some land carriage.”). Federal law controls the interpretation of maritime contracts when “the dispute is not inherently local.” Id. at 22-23, 125 S.Ct. 385. Generally, “contracts for carriage of goods by sea must be construed like any other contracts: by their terms and consistent with the intent of the parties.” Id. at 31, 125 S.Ct. 385. Potential ambiguities should be interpreted to give “reasonable and effective meaning to all terms of a contract” and to avoid “leav[ing] a portion of the writing useless or inexplicable.” Hartford Fire Ins. Co. v. Orient Overseas Containers Lines (UK) Ltd., 230 F.3d 549, 558 (2d Cir.2000). Bills of lading, however, are “contracts of adhesion and, as such, are strictly construed against the carrier.” Allied Chem. Int’l Corp. v. Companhia de Navegacao Lloyd Brasileiro, 775 F.2d 476, 482 (2d Cir.1985). b. Application Plaintiffs only contest the interpretation of the language contained in the Yang Ming and Nippon Express bills of lading. (See Sompo Mém. at 20-23; Nipponkoa Mem. at 2-3). They do not dispute that the NYK and Sumitrans bills of lading contain covenants not to sue any party other than the carrier that issued the bill — here, NYK and Sumitrans. (See Sompo Mem. at 20-23; Nipponkoa Mem. at 2-3). Accordingly, I only address the Yang Ming and Nippon Express bills of lading, each in turn below. i. Yang Miner Bill of Lading The Yang Ming bill of lading expressly limits the liability of any entity" }, { "docid": "8307805", "title": "", "text": "as consignee and “notify party” for manufacturer and shipper Hitachi, Ltd. (“Hitachi”). (See Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 5, 20, 28, 35, 41, 44; Ex. 24 to Decl. of Charles L. Howard in Supp. of Defs.’ Mot. for Summ. J. in Sompo (“Howard Sompo Decl.”)). Transport of the insured cargo involved several carriers and different types of goods being shipped from Japan and China to various locations in the state of Georgia. Kubota hired Yang Ming Marine Transport Corporation (“Yang Ming”), an ocean carrier, for the shipment of tractors from Japan to Jefferson, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 24-25; Howard Sompo Decl. Exs. 3, 9), Canon engaged Nippon Yusen Kaisha (“NYK”), also an ocean carrier, for the carriage of copiers from China to Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 32-33; Howard Sompo Decl. Exs. 8, 10). Hoshizaki employed Sumitrans Corporation (“Sumitrans”), a non-vessel operating common carrier (“NVOCC”), for the transport of appliances from Japan to Griffin, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 13-14; Howard Sompo Decl. Exs. 7, 12). And finally, Hitachi, through its consignee, Unisia, contracted Nippon Express U.S.A. (Illinois) (“Nippon Express”), also an NVOCC, for the shipment of auto parts from Japan to Monroe, Georgia. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 3EM0; Howard Sompo Decl. Exs. 5, 11). Yang Ming, NYK, Sumitrans, and Nippon Express each issued a bill or several bills of lading to its respective customer. (Howard Sompo Decl. Exs. 3, 5, 7-12). Both Sumitrans and Nippon Express, subsequently engaged Yang Ming to execute shipment of the Hoshizaki appliances and Hitachi auto parts. (Sompo’s Resp. to Defs.’ Rule 56.1 Statement ¶¶ 17, 4i). The cargo was transported by ship to California where it was discharged in the Port of Long Beach and placed on rail lines owned and operated by Burlington Northern Santa Fe Railway Company (“BNSF”). Sompo, 540 F.Supp.2d at 489-90. Each waybill generated by BNSF listed either Yang Ming or NYK as the shipper and consignee of the goods. Id. at 490. BNSF carried the cargo to Dallas, Texas," }, { "docid": "19951195", "title": "", "text": "the insureds an option for full liability under 49 U.S.C. § 11706, popularly known as the Carmack Amendment. Plaintiffs’ motion for partial summary judgment is granted. For the reasons set forth below, I hold that the rail carrier defendants’ liability is not limited by its contracts with the shipping companies or the insureds’ contracts with the shipping companies, and plaintiffs may seek recovery for the full value of the damaged cargo. BACKGROUND A. The Facts The facts are drawn from the pleadings, declarations, exhibits, and the parties’ Rule 56.1 statements. For purposes of this motion, the facts are construed in the light most favorable to defendants as the parties opposing partial summary judgment, and conflicts in the evidence have been resolved in their favor. The damaged cargo at the center of this case was shipped by boat from various points in Asia in late March 2006 to the Port of Long Beach, California, and then transported by a train owned and/or operated by defendants. The cargo owners— plaintiffs’ insureds — arranged for transport of the cargo with shipping companies, who in turn contracted for the rail transportation leg of the trip with the defendant rail carriers. On April 18, 2006, that train carrying the insureds’ cargo derailed in Texas and the containers aboard were damaged. 1. The Bills of Lading On March 31, 2006, Yang Ming Transport Corporation (“Yang Ming”) issued sixteen waybills for the carriage of Kubota New Agricultural Tractors shipped by Ku-bota Corporation from Tokyo aboard the M/V Cherokee Bridge to the Port of Long Beach, California, and from there to Jefferson, Georgia. (Eagan Deck Ex. 3). The Yang Ming bill of lading standard terms provided that the carrier’s liability was limited with respect to the goods to $500 per package or, when the goods were not shipped in packages, to $500 per customary freight unit, subject to various other provisions. {Id. Ex. 9 ¶ 23). On March 31, 2006, Nippon Express issued a bill of lading for the carriage of 7,570 cartons of automotive component parts shipped by Hitachi, Ltd. from Tokyo aboard the M/V Cherokee Bridge" }, { "docid": "19951196", "title": "", "text": "cargo with shipping companies, who in turn contracted for the rail transportation leg of the trip with the defendant rail carriers. On April 18, 2006, that train carrying the insureds’ cargo derailed in Texas and the containers aboard were damaged. 1. The Bills of Lading On March 31, 2006, Yang Ming Transport Corporation (“Yang Ming”) issued sixteen waybills for the carriage of Kubota New Agricultural Tractors shipped by Ku-bota Corporation from Tokyo aboard the M/V Cherokee Bridge to the Port of Long Beach, California, and from there to Jefferson, Georgia. (Eagan Deck Ex. 3). The Yang Ming bill of lading standard terms provided that the carrier’s liability was limited with respect to the goods to $500 per package or, when the goods were not shipped in packages, to $500 per customary freight unit, subject to various other provisions. {Id. Ex. 9 ¶ 23). On March 31, 2006, Nippon Express issued a bill of lading for the carriage of 7,570 cartons of automotive component parts shipped by Hitachi, Ltd. from Tokyo aboard the M/V Cherokee Bridge to the Port of Long Beach, California, and from there to Monroe, Georgia. (Id. Ex. 5). Nippon Express engaged Yang Ming to perform the carriage, and Yang Ming issued a waybill for the carriage of the 7,570 cartons. (Id. Ex. 4). The Nippon Express bill of lading provided that the carrier’s liability would not exceed $500 per package or unit unless the merchant declared a higher value for the goods with the consent of the carrier, in which case the higher value would be the limit on liability. The bill of lading further specified that damages claimed could not exceed actual loss. (Id. Ex. 11 ¶ 7). On March 28, 2006, Sumitrans issued a bill of lading for the carriage of 495 cartons of ice makers and sushi cases shipped by Hoshizaki Electric Co., Ltd. from Tokyo aboard the M/V Cherokee Bridge to the Port of Long Beach, California, and from there to Griffin, Georgia. (Id. Ex. 7). The Sumitrans bill of lading “Terms and Conditions” stated that the carrier’s liability would not exceed $500" }, { "docid": "8307835", "title": "", "text": "sustained to the relevant goods during their inland carriage. As this conclusion is dispositive of all of Sompo’s claims arising from such shipments, I decline to address the parties’ remaining arguments on such claims. The contested provisions in the Nippon Express bill of lading are ambiguous and require additional evidence of the parties’ intent, thus precluding summary judgment on the claims arising from the Nippon Express shipments — specifically, the Sompo-insured Unisia/Hitachi shipment and the Nipponkoa-insured Enplas and Fuji shipments. In addition, I defer ruling on the parties’ additional arguments regarding plaintiffs’ contract, tort, and bailment claims until resolution of the disputed interpretation of the Nippon express bill of lading. For the foregoing reasons, defendants’ motions for summary judgment are granted in part with respect to claims arising from the Kubota, Canon, and Hoshizaki shipments and denied in part with respect to claims arising from the Unisia/Hitachi shipment in Sompo Japan Ins., Inc. v. Norfolk S. Ry. Co., No. 07 Civ. 2735(DC). Plaintiffs’ cross-motions for summary judgment are denied. All claims against defendants arising from the Kubota, Canon, and Hoshizaki shipments are dismissed. In addition, defendants’ motions and plaintiffs’ cross motions for summary judgment are denied in Nipponkoa Ins. Co. v. Norfolk S. Ry. Co., No. 07 Civ. 10498(DC). SO ORDERED. . In this decision, I refer to Sompo's case against defendants as Sompo and Nipponkoa's case against defendants as Nipponkoa. . Norfolk Southern Corporation, a holding company and parent corporation of Norfolk Southern Railway Company, is named as a defendant only in Sompo. .Defendants’ Rule 56.1 Statement indicates that the final destination for the shipment was Georgia. (Defs.’ Rule 56.1 Statement ¶ 32). The bill of lading, however, identifies Long Beach, California, as the \"place of delivery.\" (Howard Sompo Decl. Ex. 8). Sompo does not dispute that Georgia was the final destina tion for the goods. (See Sompo's Resp. to Defs.’ Rule 56.1 Statement ¶ 32). See also Sompo, 540 F.Supp.2d at 489 & n. 1. . An NVOCC provides transportation for hire and assumes liability for the goods it agrees to ship but does not undertake actual transportation" }, { "docid": "8307834", "title": "", "text": "the Yang Ming, NYK, and Sumitrans bills of lading. Although it is “well established that in certain situations a claim for cargo damage could sound in tort as well as in contract,” Associated Metals & Minerals Corp. v. ALEXANDER’S UNITY MV, 41 F.3d 1007, 1016 (5th Cir.1995), here, that argument does not overcome the fact that plaintiffs agreed to sue only the carrier that issued the bill of lading, see Nipponkoa Ins. Co., 794 F.Supp.2d at 844 n. 2 (“Nipponkoa’s assertion that it may bring suit against Norfolk Southern as a tortfeasor is correct, but does not help it avoid the consequences of the covenant not to sue.” (internal citation omitted)). CONCLUSION The contested provisions in the Yang Ming bill of lading preclude suit against any entities other than Yang Ming, the carrier that issued the bill. I further hold such liability limitations, as stated in the Yang Ming, NYK, and Sumitrans bills of lading to be valid and enforceable. Therefore, Sompo, as subrogee of Kubota, Hoshizaki, and Canon, may not sue defendants for damages sustained to the relevant goods during their inland carriage. As this conclusion is dispositive of all of Sompo’s claims arising from such shipments, I decline to address the parties’ remaining arguments on such claims. The contested provisions in the Nippon Express bill of lading are ambiguous and require additional evidence of the parties’ intent, thus precluding summary judgment on the claims arising from the Nippon Express shipments — specifically, the Sompo-insured Unisia/Hitachi shipment and the Nipponkoa-insured Enplas and Fuji shipments. In addition, I defer ruling on the parties’ additional arguments regarding plaintiffs’ contract, tort, and bailment claims until resolution of the disputed interpretation of the Nippon express bill of lading. For the foregoing reasons, defendants’ motions for summary judgment are granted in part with respect to claims arising from the Kubota, Canon, and Hoshizaki shipments and denied in part with respect to claims arising from the Unisia/Hitachi shipment in Sompo Japan Ins., Inc. v. Norfolk S. Ry. Co., No. 07 Civ. 2735(DC). Plaintiffs’ cross-motions for summary judgment are denied. All claims against defendants arising from" }, { "docid": "8307824", "title": "", "text": "work, however, this “efficient choice,” see id. at 26, 125 S.Ct. 385 necessitates a similarly efficient structure for liability under that single contract. Cf. Regal-Beloit, 130 S.Ct. at 2447-48 (discussing efficiency implications of applying different liability regimes to different phases of international, multimodal transport). To what extent the parties intended to achieve such efficiencies here through a single through bill of lading may be relevant. Consequently, additional evidence is needed to determine the intent of the parties and whether the terms of the Nippon Express bill effectively limit who plaintiffs may sue under the bill, thus precluding summary judgment. See Scholastic, Inc. v. Harris, 259 F.3d 73, 83 (2d Cir.2001) (“When the language of a contract is ambiguous and there is relevant extrinsic evidence regarding the actual intent of the parties, an issue of fact is presented for a jury to resolve, thereby precluding summary judgment.”). Accordingly, I deny the parties’ cross-motions for summary judgement on claims arising from the Nippon Express shipments — specifically, the Hitachi/Unisia shipment in Sompo and the Enplas and Fuji shipments in Nipponlcoa. 2. Enforceability of the Covenants Not to Sue Plaintiffs assert that even if the Nippon Express and Yang Ming bills of lading are interpreted to prohibit suit against defendants, all such terms in any of the bills of lading in these matters are void under the Harter Act, 46 U.S.C. § 30702 et seq., which plaintiffs contend governs the shipments in question. (See Sompo Mem. at 23-31; Nipponkoa Mem. at 2-3). I need not reach the question of whether the Harter Act applies, as even if it does, the Act does not bar such provisions. Moreover, to the extent the parties suggest that the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C. § 30701 note, applies or that certain bills of lading incorporate the Hague Rules, I conclude that neither statutory regime prohibits the liability limitations in question. a. Applicable Law i. Himalaya Clauses A Himalaya Clause is a contractual provision in a bill of lading that extends the bill’s liability limitations to downstream parties contracted by the carrier to assist" }, { "docid": "19951197", "title": "", "text": "to the Port of Long Beach, California, and from there to Monroe, Georgia. (Id. Ex. 5). Nippon Express engaged Yang Ming to perform the carriage, and Yang Ming issued a waybill for the carriage of the 7,570 cartons. (Id. Ex. 4). The Nippon Express bill of lading provided that the carrier’s liability would not exceed $500 per package or unit unless the merchant declared a higher value for the goods with the consent of the carrier, in which case the higher value would be the limit on liability. The bill of lading further specified that damages claimed could not exceed actual loss. (Id. Ex. 11 ¶ 7). On March 28, 2006, Sumitrans issued a bill of lading for the carriage of 495 cartons of ice makers and sushi cases shipped by Hoshizaki Electric Co., Ltd. from Tokyo aboard the M/V Cherokee Bridge to the Port of Long Beach, California, and from there to Griffin, Georgia. (Id. Ex. 7). The Sumitrans bill of lading “Terms and Conditions” stated that the carrier’s liability would not exceed $500 per package or unit unless the merchant had declared a higher value with the consent of the carrier. (Id. Ex. 7 ¶ 6). On March 26, 2006, NYK Line issued a waybill for the carriage of a container of copying machines and accessories shipped by Canon Finetech Industries Development Co., Ltd. from Yantain, China aboard the M/V OOCL Ningbo to the Port of Long Beach, California, and from there to Georgia. (Id. Ex. 8). The NYK Line bill of lading provided that carrier liability was limited to $500 per package or customary freight unit. (Id. Ex. 10 ¶ 26). None of the bills of lading for any of the shipments mentioned the option of electing full “Carmack Liability.” 2. Other Waybills The cargo described above was transported by ship, discharged in the Port of Long Beach, California, and placed on rail lines owned and operated by the BNSF Railway (“BNSF”). (Luebbers Decl. ¶ 7). BNSF generated its own waybills when it accepted the containers from the ocean carriers in Long Beach. (Id. ¶ 3). For" }, { "docid": "16713474", "title": "", "text": "claims arise from the same nucleus of common fact as the Carmack claims, they are dismissed sua sponte for improper venue. BACKGROUND A. Facts The relevant facts are described in detail in the Court’s March 20, 2008, decision in a related case, Sompo Japan Insurance Co. v. Norfolk Southern Railway Co., 540 F.Supp.2d 486 (S.D.N.Y.2008) (the “related case”), and are not disputed. To summarize, in late March and early April 2006, the Kuboto, Unisia, and Hoshi-zaki companies arranged to ship tractors, auto parts, ice makers, and sushi cases from Japan by boat to the Port of Long Beach, California, and then by train to destinations inland in the eastern United States. (Compl.1ffl6, 12, 17). Sompo insured these cargo shipments. (Id. ¶¶ 3, 9, 15). Sompo’s insureds hired Yang Ming to arrange for the shipment of their cargo from Asia to their final destinations. (Id. ¶¶8, 14, 19). Yang Ming arranged for both the ocean passage of the cargo from Asia to California and the rail transportation from California to the final domestic destinations. (Id.; see Barton Decl. Ex. 2). The cargo was transported under Yang Ming through bills of lading. (Compm 6, 12, 17). The cargo was first delivered in good condition to Yang Ming in Japan, and loaded aboard the M/V CHEROKEE BRIDGE. (Id. ¶¶ 6, 12, 17). The cargo was then transported across the Pacific Ocean on the M/V CHEROKEE BRIDGE, discharged in the Port of Long Beach, California, and placed on rail lines owned and operated by the BNSF Railway. Sompo Japan Ins. Co., 540 F.Supp.2d at 489-90. For the final rail leg of the trip, Yang Ming retained Norfolk Southern Railways Corporation (“NSRC”). Id. at 490. In Dallas, Texas, the containers were interchanged from BNSF Railway to NSRC for the final leg of carriage inland. Id. Sompo’s insureds had no dealings or contracts with NSRC or any other railroad operator regarding the transport of their cargo — rather, Yang Ming was their contact. Id. at 491. On April 18, 2006, the NSRC train carrying the cargo derailed in Texas. The derailment damaged various cargo on board," }, { "docid": "8307823", "title": "", "text": "Ex. 25 at NSGENL 0024). As the party with whom NSR contracted, Yang Ming is the “Rail Services Buyer,” not plaintiffs’ insureds. (See id. Ex. 13). Therefore, the ITA, as the applicable contract for inland carriage under Section 7.3(b) of the Nippon Express bill of lading, evidences the intent of at least the defendants that, under the present shipping arrangement, plaintiffs only look to Nippon Express in seeking damages for the cargo. Finally, I note that industry practice and custom regarding multimodal through bills of lading may be relevant in determining the intent of the parties here. See Christiania Gen. Ins. Corp. of N.Y. v. Great Am. Ins. Co., 979 F.2d 268, 274 (2d Cir.1992). The Supreme Court in Kirby acknowledged the “popularity of ‘through’ bills of lading, in which cargo owners can contract for transportation across oceans and to inland destinations in a single transaction” instead of having “to negotiate a separate contract — and to find an American railroad itself — for the land leg.” 543 U.S. at 25-26, 125 S.Ct. 385. To work, however, this “efficient choice,” see id. at 26, 125 S.Ct. 385 necessitates a similarly efficient structure for liability under that single contract. Cf. Regal-Beloit, 130 S.Ct. at 2447-48 (discussing efficiency implications of applying different liability regimes to different phases of international, multimodal transport). To what extent the parties intended to achieve such efficiencies here through a single through bill of lading may be relevant. Consequently, additional evidence is needed to determine the intent of the parties and whether the terms of the Nippon Express bill effectively limit who plaintiffs may sue under the bill, thus precluding summary judgment. See Scholastic, Inc. v. Harris, 259 F.3d 73, 83 (2d Cir.2001) (“When the language of a contract is ambiguous and there is relevant extrinsic evidence regarding the actual intent of the parties, an issue of fact is presented for a jury to resolve, thereby precluding summary judgment.”). Accordingly, I deny the parties’ cross-motions for summary judgement on claims arising from the Nippon Express shipments — specifically, the Hitachi/Unisia shipment in Sompo and the Enplas and Fuji" }, { "docid": "17646564", "title": "", "text": "NVOCCs from freight forwarders). As Prima describes, NVOCCs consolidate cargo for shipment by an ocean carrier, and the ocean carrier, or some other entity, must thereafter engage inland carriers to complete the carriage of goods to an inland destination. The job of a non-vessel operating common carrier (“NVOCC”) is to consolidate cargo from numerous shippers into larger groups for shipment by an ocean carrier. A NVOCC — as opposed to the actual ocean carrier transporting the cargo — issues a bill of lading to each shipper. A freight forwarder ..., on the other hand, simply facilitates the movement of cargo to the ocean vessel ... [ujnlike a carrier, a freight forwarder does not issue a bill of lading, and is therefore not liable to a shipper for anything that occurs to the goods being shipped. Id. at 129 (internal citations omitted). Yang Ming was the party that engaged the motor transportation (via Djuric) and, if Carmack potentially applies, it applies to Yang Ming and Djuric, not OWL. Sompo, the Second Circuit case on which Royal & Sun principally relies, involved a claim by a shipper against a rail carrier, not against an ocean carrier or NVOCC. In Sompo, 32 tractors were shipped from Tokyo, Japan, to Swanee, Georgia, by way of the port of Los Ange-les, CA. The shipper hired the ocean carrier, Mitsui OSK Line Ltd. (“Mitsui”), to arrange for through transport from Japan to Georgia, including the domestic inland portion. Mitsui engaged defendant Union Pacific, a rail carrier, to carry the goods from the ship dock in Los Angeles to the terminal point in Swanee, Georgia. The shipper did not declare a value for the goods being shipped; no such mention was identified in the spaces provided on the bill of lading issued by Mitsui. The bill of lading provided that COGSA’s $500 per package damage limitation would apply, not only to the ocean voyage, but also, through a Himalaya clause and a Clause Paramount, to all subsequent carriers of the goods to final destination. The train carrying the cargo from Los Angeles to Georgia was derailed in" }, { "docid": "16713475", "title": "", "text": "Barton Decl. Ex. 2). The cargo was transported under Yang Ming through bills of lading. (Compm 6, 12, 17). The cargo was first delivered in good condition to Yang Ming in Japan, and loaded aboard the M/V CHEROKEE BRIDGE. (Id. ¶¶ 6, 12, 17). The cargo was then transported across the Pacific Ocean on the M/V CHEROKEE BRIDGE, discharged in the Port of Long Beach, California, and placed on rail lines owned and operated by the BNSF Railway. Sompo Japan Ins. Co., 540 F.Supp.2d at 489-90. For the final rail leg of the trip, Yang Ming retained Norfolk Southern Railways Corporation (“NSRC”). Id. at 490. In Dallas, Texas, the containers were interchanged from BNSF Railway to NSRC for the final leg of carriage inland. Id. Sompo’s insureds had no dealings or contracts with NSRC or any other railroad operator regarding the transport of their cargo — rather, Yang Ming was their contact. Id. at 491. On April 18, 2006, the NSRC train carrying the cargo derailed in Texas. The derailment damaged various cargo on board, including the Kuboto tractors, Uni-sia auto parts, and Hoshizaki ice makers and sushi cases. Id. at 489. B. Procedural History On April 4, 2007, Sompo filed the related case against NSRC, Norfolk Southern Corporation, and The Kansas City Southern Railway Company to recover for the damage to the cargo, alleging that defendants owned and/or operated the railroads and rail lines along which the cargo was transported. On December 14, 2007, Sompo filed the instant action against Yang Ming, seeking damages for each of the three shipments for (1) violations under 49 U.S.C. § 11706, a provision of Car-mack, (2) common law negligence, (8) common law breach of bailment, and (4) breach of contract and breach of duties under the Carriage of Goods By Sea Act (“COGSA”). Sompo’s complaint alleges that Yang Ming was the “delivering rail carrier” under Carmack, and therefore liable under Car-mack. On February 25, 2008, Yang Ming moved to dismiss the Carmack claims pursuant to Rule 12(b)(6). If the Carmack claims survive the motion, Yang Ming asks that the Court dismiss the" } ]

[ { "docid": "16930152", "title": "", "text": "FTCA claim against the VA and remanded his remaining state law claims against Okeechobee Hospital and Dr. Kruszel to the state circuit court. II. As we have noted elsewhere, “[t]he FTCA is a specific, congressional exception to the general rule of sovereign immunity [that] allows the government to be sued by certain parties under certain circumstances for particular tortious acts committed by employees of the government.” Suarez v. United States, 22 F.3d 1064, 1065 (11th Cir.1994). As a result, courts must be careful to observe scrupulously the circumstances and conditions of this waiver. See id. One such condition, set forth in 28 U.S.C. § 2675(a), requires that the administrative agency being sued receive notice and an opportunity to resolve the dispute without litigation: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675(a). If the claim is not presented in writing to the agency within two years after it accrues, it is forever barred. 28 U.S.C. § 2401(b). A claim is deemed to be presented “when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the accident.” 28 C.F.R. § 14.2 (2001)." } ]

[ { "docid": "14648291", "title": "", "text": "his administrative remedies. Austin Vernell does not appeal that ruling. . Furthermore, the delivery of process to the United States Attorney alone, if it is done within the six month statute of limitations period, satisfies the requirement of properly notifying the United States of the action against it for purposes of allowing the amendment to relate back to the date of the original pleading. See Fed.R. Civ.P. 15(c); Edwards v. United States, 755 F.2d 1155, 1157-58 (5th Cir.1985) (per curiam). In contrast, the Ninth Circuit, relying on the requirements of Fed.R.Civ.P. 4(d)(4), has held that service must be made on both the proper United States attorney and the Attorney General in order to have the amendment naming the United States as a defendant relate back to the date of the original pleading. See Allen v. Veterans Administration, 749 F.2d 1386, 1389-90 (9th Cir.1984). .Title 28 U.S.C. § 2401(b) provides; A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented, (emphasis added). . In Carr, a case involving section 2401(b), the court found that a six months limitations period that began on February 5, 1973, ended on August 6, 1973. It is unclear which method the court was using because under both methods the limitations period would expire on a weekend day (August 4 or August 5). Under Fed.R. Civ.P. 6(a) deadlines which end on weekends are extended to the next business day, which in this case was Monday, August 6. Thus, Carr does not answer the question posed by this case. . The Ninth Circuit has also appeared to adopt the first method without any discussion of the problem. Allen, 749 F.2d at 1388-89. . The Seventh Circuit apparently uses yet another method. In Hughes v. United States, 701 F.2d 56 (7th Cir.1982), the FTCA claim was" }, { "docid": "9049252", "title": "", "text": "BARRON, Circuit Judge. The District Court dismissed this Federal Tort Claims Act (\"FTCA\") suit for wrongful death on the ground that the plaintiffs had not first timely presented their claim to the appropriate federal agency. See 28 U.S.C. § 2401(b). We vacate and remand. I. The suit arises from the plaintiffs' allegation that federal agents or employees of Immigration and Customs Enforcement (\"ICE\") within the United States Department of Homeland Security negligently shot their close relative, who the government concedes died as a result of his gunshot wounds. The appeal turns on the timeliness of the claim's presentment to that agency. The timeliness issue arises because the FTCA waives the United States' sovereign immunity in federal court with respect to certain torts committed by federal employees only if certain preconditions are met. Id. § 1346(b). In particular, before a tort action against the United States may be filed in federal court under the FTCA, the tort claim must first be \"presented\" to the appropriate federal agency \"within two years after such claim accrues.\" Id. § 2401(b). A regulation, 28 C.F.R. § 14.2(a), promulgated by the United States Department of Justice fleshes out parts of this requirement. See Santiago-Ramirez v. Sec'y of Dep't of Def., 984 F.2d 16, 19 (1st Cir. 1993). The regulation provides that a tort claim is \"presented\" within the meaning of § 2401(b) when the appropriate federal agency \"receives\" written notice of that claim. 28 C.F.R. § 14.2(a). If the agency that receives a timely presented claim denies it, then an FTCA suit predicated on that claim must be brought in federal court within six months of the agency's denial to avoid being dismissed. 28 U.S.C. § 2401(b). The following facts bearing on whether the claim was timely presented are undisputed, unless noted otherwise. The plaintiffs' tort claim, as it is predicated on their relative's death, accrued when their relative died on July 27, 2012. On May 20, 2014, the plaintiffs mailed notice of their tort claim to the Federal Bureau of Investigation (\"FBI\"). The plaintiffs did so because they originally believed, based on what an unidentified" }, { "docid": "14252742", "title": "", "text": "be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). Since the complaint asserts all the required elements — the claim is one for wrongful death under Massachusetts state law, arising from actions taken by an FBI employee within the scope of his employment and seeking money damages against the United States — this action is cognizable under the FTCA. Therefore, the FTCA remedy is the exclusive remedy, and the FBI is not a proper defendant. Accordingly, the claims against the FBI are dismissed for lack of subject matter jurisdiction. Conclusion. For the reasons stated above, I hold that the plaintiffs claims, as asserted against the United States, are not time-barred because, by operation of the discovery rule, the claims did not accrue until summer of 1998. Because of the. actions by the FBI constituting concealment of essential facts, I further hold that the limitations period was tolled until July of 2000, and the plaintiffs filing on September 10, 2001 of his administrative claim was therefore timely. The motion of the United States to dismiss claims asserted against it is therefore DENIED. With respect to claims asserted against the FBI, I conclude that the remedy provided by the FTCA is exclusive, and the motion to dismiss such claims as they relate to the FBI itself is therefore GRANTED. SO ORDERED. . 28 U.S.C. § 2401(b) states that \"[a] tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” . In Richman, the plaintiff was assaulted and seriously injured by one George Chalpin, who had been treated by a Veterans’ Administration hospital for emotional stress before his encounter with the plaintiff. Richman, 709 F.2d at 123. In Zeleznik, the plaintiff's son was murdered by one Vernal" }, { "docid": "805729", "title": "", "text": "See Defs.’ Mot. at 3. Plaintiff consents to this substitution. Plaintiffs Response to Motion to Dismiss (“PL’s Opp’n”) ¶ 2. Defendants’ request will be granted, and the United States will be substituted as the sole party defendant in this action. B. Plaintiff’s FTCA Claim Was Not Filed Timely “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Generally, the FTCA operates as a limited waiver of sovereign immunity, rendering the United States amenable to suit for certain, but not all, tort claims. See, e.g., Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). A condition of this waiver of sovereign immunity is the timely presentation of a claim to the appropriate federal government agency. See United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). The FTCA in relevant part provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b) (emphasis added). Thus, the filing of such a claim with the agency is a mandatory prerequisite to filing a lawsuit against the United States, and without it, the Court lacks jurisdiction to entertain a tort claim against the United States. Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984); Stokes v. United States Postal Serv., 937 F.Supp. 11, 14 (D.D.C.1996). An FTCA claim accrues once the injured party knows both the fact of his injury and its cause. See Kubrick, 444 U.S. at 122, 100 S.Ct. 352; Sexton" }, { "docid": "3800238", "title": "", "text": "MEMORANDUM OPINION AND ORDER WILLIAM T. HART, District Judge. In accordance with the requirements of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., plaintiff Edward Trihue filed an administrative claim with the Veteran’s Administration (“VA”) on March 29, 1983, alleging that the defendant United States through its employees negligently administered medical care to him. The VA denied his claim initially and on reconsideration, and on April 30, 1985 mailed his lawyer a final denial of his claim. On October 31, 1985 plaintiff filed this case. Presently before the court is defendant’s motion to dismiss this action as untimely. As a partial waiver of sovereign immunity, the FTCA’s jurisdictional requirements must be strictly construed. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57, 62 L.Ed.2d 259 (1979); Green v. United States, 765 F.2d 105, 108 (7th Cir.1985). Under 28 U.S.C. § 2401(b), all tort claims against the United States are “forever barred unless ... action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” The limitations period in § 2401(b) cannot be extended for equitable considerations. Anderberg v. United States, 718 F.2d 976, 977 (10th Cir.1983), cert. denied, 466 U.S. 939, 104 S.Ct. 1916, 80 L.Ed.2d 463 (1984); Tuttle v. United States Postal Service, 585 F.Supp. 55 (M.D.Pa.1983), aff’d without published opinion, 735 F.2d 1351 (3d Cir.1984). Failure to comply with the six-month requirement divests a district court of jurisdiction to entertain the claim. Charlton v. United States, 743 F.2d 557, 558 (7th Cir.1984). The Seventh Circuit has not faced the question of how exactly to compute the six-month time limit. It has, however, indicated its view twice in dicta. In Hughes v. United States, 701 F.2d 56 (7th Cir.1982), the FTCA claim was denied by the agency on November 14, 1980. The plaintiffs in that case filed suit on May 13, 1981, but they did not (as required) name the United States as a party defendant. On appeal, the question was" }, { "docid": "9865169", "title": "", "text": "States Postal Serv., 546 U.S. 481, 484, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). However, the waiver is limited, see Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 270-271 (3d Cir.2006), and is strictly construed in favor of the sovereign. See Orff v. United States, 545 U.S. 596, 601-602, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005). Courts in other jurisdictions have almost uniformly concluded that the term “presented” in the filing of an administrative claim means more than merely mailing the claim. See Moya v. United States, 35 F.3d 501, 504 (10th Cir.1994) (rejecting any presumption that a claim was received where an attorney by affidavit swore that she had sent a request for reconsideration by certified mail); Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985) (“Mailing is not presenting; there must be receipt.”); Bailey v. United States, 642 F.2d 344, 347 (9th Cir.1981) (refusing to “accept appellants’ invitation to rewrite the [FTCA] and in effect repeal the regulation by holding that mailing alone is sufficient to meet the requirement that a claim be ‘presented.’ ”). The Ninth Circuit recently noted that since Bailey, “virtually every circuit to have ruled on the issue has held that the mailbox rule does not apply to [FTCA] claims, regardless of whether it might apply to other federal common law claims.” Vacek v. United States Postal Serv., 447 F.3d 1248, 1252 (9th Cir.2006). We now join these sister Courts in rejecting the mailbox rule and holding that a plaintiff must demonstrate that the Federal agency was in actual receipt of the claim, whether on initial presentment or on a request for reconsideration. For the foregoing reasons, we will affirm the judgment of the District Court. . In his initial claim Lightfoot described himself as both the passenger and driver of the car; however, in his appellate brief he consistently describes himself as the driver. . Lightfoot offers the affidavit of attorney Frank Pollock describing the law firm’s mailing procedure and his recollection of signing a final copy of the request for reconsideration before giving it to his secretary to be mailed. Teszner" }, { "docid": "9865168", "title": "", "text": "bears the burden of demonstrating subject matter jurisdiction. See Carpet Group Int’l v. Oriental Rug Importers Ass’n, 227 F.3d 62, 69 (3d Cir.2000). Lightfoot alleges that he filed his request for reconsideration on April 16, 2007, and that the District Court erred in refusing to apply the “mailbox rule” to his claim for reconsideration. We disagree. The plain language of 39 C.F.R. § 912.9(c) is fatal to Lightfoot’s contention. The regulation provides that a request for reconsideration is “deemed to have been filed when received in the office of the official who issued the final denial ____” (emphasis added). “It is elementary that ‘[t]he United States, as sovereign, is immune from suit save as it consents to be sued.’ ” United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). In enacting the FTCA, Congress waived immunity for tort claims against the United States and its agencies, including the USPS. See Dolan v. United States Postal Serv., 546 U.S. 481, 484, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006). However, the waiver is limited, see Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 270-271 (3d Cir.2006), and is strictly construed in favor of the sovereign. See Orff v. United States, 545 U.S. 596, 601-602, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005). Courts in other jurisdictions have almost uniformly concluded that the term “presented” in the filing of an administrative claim means more than merely mailing the claim. See Moya v. United States, 35 F.3d 501, 504 (10th Cir.1994) (rejecting any presumption that a claim was received where an attorney by affidavit swore that she had sent a request for reconsideration by certified mail); Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985) (“Mailing is not presenting; there must be receipt.”); Bailey v. United States, 642 F.2d 344, 347 (9th Cir.1981) (refusing to “accept appellants’ invitation to rewrite the [FTCA] and in effect repeal the regulation by holding that mailing alone is sufficient to meet the requirement that a claim" }, { "docid": "8992946", "title": "", "text": "claim. DISCUSSION Section 2401(b) provides that a tort claim against the United States is barred “unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” No notice of final denial was issued to Parker by the Department of Agriculture regarding his claim. 28 U.S.C. § 2675(a) states that the “failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim.” The Government argues that the six month period of limitations set forth in section 2401(b) began to run when Parker filed his initial action in August of 1989. It contends that, by virtue of section 2675(a), the filing of the action constituted a “final denial of the claim by the agency” for purposes of section 2401(b). No precedent supports such a reading of these sections. We reject the argument. Section 2675 requires that a claim be presented to the appropriate federal agency prior to bringing suit under the FTCA. See Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980). If an administrative claim has been properly filed, section 2675(a) provides that a claimant need not wait longer than six months for the agency to act on his claim before bringing suit pursuant to the FTCA. This ensures that the exhaustion requirement does not unduly burden claimants. After six months have elapsed, section 2675(a) specifies that the claimant has the option “any time thereafter*’ to pursue his claim in district court under the FTCA. Section 2401(b) contains two statutes of limitations. The first requires that an administrative claim be filed with the appropriate agency within two years after the claim accrued. Parker met this requirement. The second requires that an FTCA suit be brought within six months “after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”" }, { "docid": "2951166", "title": "", "text": "As in Bailey, there was a long series of communications between plaintiffs counsel and the administrative agency. As in Bailey, Vacek’s counsel did nothing to verify that the claim had been received. As in Bailey, the government provided affidavits attesting that the claim was never received. There is no principled distinction that can be drawn. Bailey controls this appeal. C In light of the Supreme Court’s repeated admonition that waivers of sovereign immunity must be interpreted strictly, we conclude that Bailey sets out the correct rule of law. Since Bailey, virtually every circuit to have ruled on the issue has held that the mailbox rule does not apply to Act claims, regardless of whether it might apply to other federal common law claims. See, e.g., Moya v. United States, 35 F.3d 501, 504 (10th Cir.1994) (“It is the plaintiffs burden to establish the proper agency’s receipt of the request for reconsideration”); Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir.1993) (upholding dismissal where “the ‘request for administrative remedy’ was not mailed by certified mail [and] the ‘request for administrative remedy’ was not received by the Federal Bureau of Prisons”); Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985) (“[T]he district court was quite right to hold that mailing is not presenting; there must be receipt”). Put simply, it cannot be strict construction of the waiver to read the word “received” as actually meaning “mailed.” There is only one circuit case to have interpreted the Act to allow the mailbox rule. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238-39 (11th Cir.2002). There, Barnett asserted that he had mailed a completed Form 95 and included in his amended complaint a copy of the form, the accompanying cover letter, and a copy of the envelope in which he mailed it. Id. at 1238. The court found that this evidence “raise[d] an inference” that he had mailed the documents. Id. The court then detailed the acceptance of the mailbox rule and stated that the government had a financial stake in the outcome of this litigation. Id. at 1240. The court then concluded:" }, { "docid": "4311838", "title": "", "text": "and from it Ms. Reynolds appeals. Two statutory provisions, govern this case. They are 28 U.S.C. § 2401(b) and 28 U.S.C. § 2675(a). They provide in pertinent part as follows: § 2401. Time for commencing action against United States •t * # 1« * ■ * (b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. § 2675. Disposition by federal agency as prerequisite; evidence (a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or- death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim' within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim. Under these two provisions, one who wishes to bring an action against the government pursuant to the FTCA must first present an administrative claim to the appropriate federal agency. No action may be brought against the government until that agency has finally denied the claim in writing. Once the agency’s final, written denial has been sent to the claimant, the claimant has six months within which to bring his FTCA action against the" }, { "docid": "2951184", "title": "", "text": "in accord with other circuits. See Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1238-39 (11th Cir.2002). The majority opinion's statements to the contrary are not supported. In Moya v. United States, 35 F.3d 501, 504 (10th Cir.1994), the Tenth Circuit considered the application of the mailbox rule to FTCA cases. It did not hold, as the majority suggests, that the mailbox rule does not apply. Rather, it held: \"While the law presumes delivery of a properly addressed piece of mail, no such presumption exists for certified mail where the return receipt is not received by the sender.” Id. at 504 (citations omitted and emphasis added). Similarly, in Bellecourt v. United States, 994 F.2d 427 (8th Cir.1993), the Eighth Circuit held that a plaintiff had failed to meet the presentment requirements of the FTCA. However, it is not clear at all that the Eighth Circuit based its opinion on the inapplicability of the mailbox rule to FTCA claims. Rather, the Eighth Circuit appears to have based its decision on the fact that the plaintiff used the wrong form for his FTCA claim and failed to comply with the \"sum certain” requirement. . Finally, in Drazan v. United States, 762 F.2d 56, 58 (7th Cir.1985), the Seventh Circuit makes no mention of the mailbox rule's presumption of receipt, and we cannot infer that the Seventh Circuit considered it." }, { "docid": "613410", "title": "", "text": "was acting in the scope of his employment, remove the case, and procure dismissal on the ground that plaintiff must first seek administrative relief. By that time it is too late for such relief and plaintiff is left without a remedy. Apprehension of such “sandbagging” underlies Kelley’s holding that plaintiffs injured in collisions are not subject to the FTCA’s administrative exhaustion require ment. See, e.g., Wollman, 637 F.2d at 549 (distinguishing Kelley on this basis); Reiser v. Di Pietro, 78 F.R.D. 541, 542 (N.D.Ill.1978) (same). In the present case, however, Houston was not ignorant of the fact that Howard was in the course of his employment for the USPS. The postal van was clearly marked as such, and Houston's knowledge is conclusively demonstrated by the fact that he sued the United States and USPS in state court and timely filed an FTCA administrative claim. Therefore, we hold that before the United States is forced to defend a tort suit arising from a collision between a private vehicle and a government vehicle, the plaintiff-at least one who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 28 U.S.C. § 2401(b): \"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612" }, { "docid": "23618931", "title": "", "text": "FTCA administrative claim. See Best Bearings Co., v. United States, 463 F.2d 1177, 1179 (7th Cir.1972), abrogated on other grounds as recognized by Kanar v. United States, 118 F.3d 527 (7th Cir.1997). In the instant case, Plaintiffs did not request damages. Plaintiffs admit in their brief that the December 1997 correspondence sought return of “all forfeited proceeds or their monetary equivalent.” In addition, Plaintiffs did not request a “sum certain” because they requested first and foremost return of the forfeited assets themselves. The district court properly determined that, in any event, Plaintiffs’ petition for remission fell outside the two-year limitations period for filing an administrative claim under the FTCA and thus could not serve as a valid administrative claim. Under the FTCA, a district court does not have jurisdiction over an action filed pursuant thereto if the plaintiff did not file an administrative claim within the two-year limitations period under 28 U.S.C. § 2401(b). That section states: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. Id. Plaintiffs claim accrued when they discovered or had reason to discover that their property allegedly had been fraudulently forfeited. See Polanco v. United States Drug Enforcement Admin., 158 F.3d 647, 654 (2d Cir.1998). Here, the underlying consent judgment in the civil forfeiture of Plaintiffs’ assets was entered on September 25, 1992, more than five years before they filed their petition for remission. Moreover, Plaintiffs wrote a letter in August of 1994 to two Assistant United States Attorneys seeking to negotiate an agreement vacating their convictions for a structuring offense and the consent judgment for civil forfeiture of their properties. The letter indicates that Plaintiffs believed that their property or assets were improperly or wrongfully forfeited. (J.A. at 88.) Therefore, at the latest, Plaintiffs were aware or had reason to" }, { "docid": "10853298", "title": "", "text": "these claims are time barred. Based on the information before us, we disagree. To sustain a tort claim against the United States, an individual must first present the claim in writing to the appropriate federal agency, including a request for a specific compensation sum, within two years of accrual. 28 U.S.C. §§ 2401(b), 2675(a). Then, if the agency denies the claim, a civil action must be initiated within six months of the date of mailing of notice of final denial of the claim. Id. Failing to follow this procedure deprives federal courts of subject matter jurisdiction. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456-58 (3d Cir.2010). Plaintiffs presented their joint complaint to the TSA on July 28, 2008-within two years of the July 29, 2006 incident at the Philadelphia airport. TSA denied the claim on May 19, 2009 and Plaintiffs initiated the current action within the six month time span on November 18, 2009. Thus, it appears Plaintiffs followed the required procedure in a timely manner. We recognize that we cannot yet ascertain the specifics of the claim presented to the TSA. Plaintiffs describe an all-encompassing document. If it is established that Plaintiffs did not adequately present the basis for investigation into any of the following grounds for FTCA liability, or failed to allege a specific sum of damages, then this Court will lack jurisdiction. For the time being, however, we look to see whether Plaintiffs plead the elements of a tort that is actionable under the' FTCA. A. Property Damage Pellegrino has plead a claim against TSA Officers for causing permanent damage to her property during the airport security search and then afterward disposing of her property without permission. She identifies several damaged items: eyeglasses, expensive gold jewelry, an irreplaceable coin purse from Pellegrino’s late father, and her various bags. B. False Arrest, False Imprisonment, and Malicious Prosecution Through the FTCA, the United States chose to abrogate its sovereign immunity and provide an avenue for tort claims for the wrongful conduct of federal employees. However, the abrogation of immunity is not absolute. Plaintiffs cannot bring “any claim arising" }, { "docid": "613411", "title": "", "text": "who knows or should know that the driver was a government employee-must meet the FTCA's administrative exhaustion requirements and then timely commence suit against the government as provided by 28 U.S.C. § 2401(b). II, Having concluded that Houston's claim was subject to the FTCA, we must ascertain whether he met the jurisdictional prerequisites of that statute. We hold that Houston did not comply with the FTCA. The applicable limitations period is stated in 28 U.S.C. § 2401(b): \"A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.\" Though phrased in the disjunctive, this statute requires a claimant to file an administrative claim within two years and file suit within six months of its denial. Willis v. United States, 719 F.2d 608, 612 (2d Cir.1983) (per Friendly, J.); Dyniewicz v. United States, 742 F.2d 484, 485 (9th Cir.1984); Schuler v. United States, 628 F.2d 199, 201 (D.C.Cir.1980); cf. Reynolds v. United States, 748 F.2d 291 (5th Cir.1984) (dismissing amended complaint brought against United States after the expiration of the six-month period, even though plaintiff had timely filed an administrative claim). These limitations periods are jurisdictional. Equitable considerations that may waive or toll limitations periods in litigation between private parties do not have that same effect when suit is brought against the sovereign. E.g., Goff v. United States, 659 F.2d 560, 561 (5th Cir.1981). This is so because under the doctrine of sovereign immunity the government's exposure to liability can be no greater than it permits. Id.; see also Gregory v. Mitchell, 634 F.2d 199, 204 (5th Cir.1981) (filing of suit within six months of administrative denial is a jurisdictional requirement); Carr v. Veterans Administration, 522 F.2d 1355, 1357 (5th Cir.1975) (stating that because it is a waiver of sovereign immunity, the six-month filing requirement must be followed strictly);" }, { "docid": "805730", "title": "", "text": "States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). The FTCA in relevant part provides: A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented. 28 U.S.C. § 2401(b) (emphasis added). Thus, the filing of such a claim with the agency is a mandatory prerequisite to filing a lawsuit against the United States, and without it, the Court lacks jurisdiction to entertain a tort claim against the United States. Jackson v. United States, 730 F.2d 808, 809 (D.C.Cir.1984); Stokes v. United States Postal Serv., 937 F.Supp. 11, 14 (D.D.C.1996). An FTCA claim accrues once the injured party knows both the fact of his injury and its cause. See Kubrick, 444 U.S. at 122, 100 S.Ct. 352; Sexton v. United States, 832 F.2d 629, 633 (D.C.Cir.1987); see also Loughlin v. United States, 230 F.Supp.2d 26, 39 (D.D.C.2002) (FTCA claims involving contamination or damage to real property accrue when plaintiff discovers or should have discovered contamination on his property). Defendants move to dismiss on the ground that plaintiff failed to file his claim within the FTCA’s two-year statute of limitations. See Defs.’ Mot. at 9-10. In their view, plaintiffs cause of action accrued no later than November 4, 1998, the date of his sentencing. Id. at 9. Defendants argue that “the alleged negligent preparation of the PSR, and the ‘improperly extended’ sentence incurred by plaintiff, both occurred seven years before plaintiffs June 5, 2006 filing of his administrative claim under the FTCA.” Id. at 9-10. Plaintiff counters that his complaint “is not related to the initial preparation of the report but rather relates to the refusal to correct the [PSR] after plaintiff [ ] provided new evidence, never before made available to any court, that the report contains factually inaccurate statements.” Pl.’s Opp’n ¶" }, { "docid": "18857770", "title": "", "text": "considered whether a request for reconsideration which was mailed prior to the expiration of the six month limitation period but received by the agency one day after the period expired was timely. An-derberg, 718 F.2d at 976. We determined that it was the date that the agency received the request that was critical to the determination of timeliness and that the act of mailing the notice did not constitute “presentment” to the agency. Id. Plaintiff argues that in this case she mailed the request two months prior to the expiration of the six month period and that the request should be presumed to have been received. Therefore, plaintiff argues, Anderberg does not control this situation. Under the FTCA, “a claim shall be deemed to have been presented when a Federal agency receives from a claimant [her administrative notice of claim.]” 28 C.F.R. § 14.2(a) (emphasis added); Anderberg, 718 F.2d at 977; Bailey v. United States, 642 F.2d 344, 346 (9th Cir.1981). “Nowhere is there any indication that what constitutes presentment of a request for reconsideration is different from presentment of the claim itself.” Anderberg, 718 F.2d at 977. Thus a request for reconsideration is not presented to an agency until it is received by the agency. See id. Mailing of a request for reconsideration is insufficient to satisfy the presentment requirement. See id. It is the plaintiffs burden to establish the proper agency’s receipt of the request for reconsideration. See Bailey, 642 F.2d at 346 (plaintiff has the burden of establishing presentment); Dark v. United States, No. CIV.A. 91-1438, 1991 WL 147544, *3 (E.D.Pa. July 26, 1991) (plaintiffs burden to show post office received claim), aff'd, 961 F.2d 1566 (3rd Cir.1992); Anderson v. United States, 744 F.Supp. 641, 643, 644 & n. 5 (E.D.Pa.1990) (government’s motion to dismiss granted where plaintiff had no receipt to prove FTCA claim was timely presented to appropriate agency). However, plaintiff argues that the affidavit by her counsel stating that the request for reconsideration was mailed establishes a presumption of receipt by the addressee. Although plaintiff claims the request for reconsideration was sent to defendant" }, { "docid": "9865170", "title": "", "text": "be ‘presented.’ ”). The Ninth Circuit recently noted that since Bailey, “virtually every circuit to have ruled on the issue has held that the mailbox rule does not apply to [FTCA] claims, regardless of whether it might apply to other federal common law claims.” Vacek v. United States Postal Serv., 447 F.3d 1248, 1252 (9th Cir.2006). We now join these sister Courts in rejecting the mailbox rule and holding that a plaintiff must demonstrate that the Federal agency was in actual receipt of the claim, whether on initial presentment or on a request for reconsideration. For the foregoing reasons, we will affirm the judgment of the District Court. . In his initial claim Lightfoot described himself as both the passenger and driver of the car; however, in his appellate brief he consistently describes himself as the driver. . Lightfoot offers the affidavit of attorney Frank Pollock describing the law firm’s mailing procedure and his recollection of signing a final copy of the request for reconsideration before giving it to his secretary to be mailed. Teszner also submitted an affidavit. In it, he states that he did not receive Lightfoot’s request for reconsideration. . 28 U.S.C. § 2675(a) provides that: An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. . 28 U.S.C. § 2401(b) provides: [a] tort claim against the United States shall be forever barred unless it is presented in writing" }, { "docid": "10853297", "title": "", "text": "discussed infra.' I. Claims for Tort Damages Pursuant to the Federal Torts Claim Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680 The Federal Tort Claims Act (FTCA) confers jurisdiction upon the district courts over claims for damages “for injury or loss of property, or personal injury or death” caused by the negligent or wrongful acts or omissions of federal employees. The liability of the United States is determined in accordance with state law, in the same manner and to the same extent as a private individual in like circumstances. 28 U.S.C. §§ 1346(b), 2674. Plaintiffs may bring claims in federal court based on the action of Government employees, but only “when private persons engaging in analogous behavior would be liable under state law.” CNA v. United States, 535 F.3d 132, 138 (3d Cir.2008). In this case, Pennsylvania law determines the extent of the United States’ liability under the FTCA. See Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Defendants recognize Plaintiffs’ attempt to plead FTCA claims and protest that these claims are time barred. Based on the information before us, we disagree. To sustain a tort claim against the United States, an individual must first present the claim in writing to the appropriate federal agency, including a request for a specific compensation sum, within two years of accrual. 28 U.S.C. §§ 2401(b), 2675(a). Then, if the agency denies the claim, a civil action must be initiated within six months of the date of mailing of notice of final denial of the claim. Id. Failing to follow this procedure deprives federal courts of subject matter jurisdiction. White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456-58 (3d Cir.2010). Plaintiffs presented their joint complaint to the TSA on July 28, 2008-within two years of the July 29, 2006 incident at the Philadelphia airport. TSA denied the claim on May 19, 2009 and Plaintiffs initiated the current action within the six month time span on November 18, 2009. Thus, it appears Plaintiffs followed the required procedure in a timely manner. We recognize that we cannot yet ascertain the" }, { "docid": "11570764", "title": "", "text": "States,” provides that a federal tort claim is “forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.” Title 28 U.S.C. § 2675(a) requires the presentation of such a claim to the appropriate federal agency and the agency’s written denial of the claim, or the lapse of six months without agency denial of the claim, before institution of suit against the United States under the FTCA. The record demonstrates without question that these provisions were not complied with. The filing of an administrative claim to the extent required by 28 U.S.C. § 2675(a), is a jurisdictional prerequisite to suit in reliance upon the Federal Tort Claims Act and the waiver of immunity afforded by that act. Smith v. United States, 588 F.2d 1209 (8th Cir. 1978); Blain v. United States, 552 F.2d 289 (9th Cir. 1977); Rosario v. Am. Export-Isbrandtsen Lines, Inc., 531 F.2d 1227 (3d Cir.), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971). See also Anno. Tort Claims Act — Actions—Procedure, 13 A.L.R.Fed. 762 (1972). Texaco contends that its tort claim falls within the exceptions contained in the last sentence of section 2675(a) covering claims asserted by third-party complaint, cross-complaint or counterclaim. These exceptions, however, are not applicable in this case. Rule 14(a), Federal Rules of Civil Procedure, permits the defendant, as third-party plaintiff, to bring in a third-party defendant, defined as one “who is or may be liable to him for all or part of the plaintiff’s claim against him.” Notwithstanding the district court’s leave to Texaco for the filing of a “third-party claim” against DOE, the claim as filed did not in fact or law constitute a third-party claim under Rule 14 to which ancillary jurisdiction" } ]

[ { "docid": "6137236", "title": "", "text": "the NRAB’s determination with regard to the time limitations in the collective bargaining agreement is subject to a narrow standard of judicial review under 45 U.S.C.A. § 153 First (p) and (q), and under Gunther v. San Diego & Arizona Eastern Ry., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308. The provisions of the Railway Labor Act dealing with the Adjustment Board are “to be considered as compulsory arbitration in this limited field.” Brotherhood of Railroad Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622; see Gunther v. San Diego & Arizona Eastern Ry., 382 U.S. 257, 86 S.Ct. 368, 15 L.Ed.2d 308. The Senate report on 1966 amendments to Railway Labor Act stated: “The National Railroad Adjustment Board was established in 1934 under the Railway Labor Act to provide machinery for resolving so-called minor disputes between individual employees and the carriers. Minor disputes arise out of grievances or interpretation or application of agreements concerning rates of pay, rules, or working conditions.” (Emphasis added). 1966 U.S.Code Cong. & Admin. News, p. 2286. The federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. Prompt execution of Board orders is a necessity. The range of judicial review in enforcement cases is among the narrowest known to the law and the findings and order of the Board are conclusive. Denver & R.G.W. R.R. v. Blackett, 538 F.2d 291 (10th Cir.); Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228 (5th Cir.); Brotherhood of Railroad Trainmen v. Denver & R.G.W. R.R., 370 F.2d 833 (10th Cir.). We agree generally with the railroad that the reviewable aspects of an award have been traditionally confined to lack of jurisdiction, the Board’s acting outside the law, or the presence of fraud or corruption. This scope was fully treated by this court in Denver & R.G.W. R.R. v. Blackett, 538 F.2d 291 (10th Cir.), which concerned a seniority issue and yardmasters’ qualifications under the agreement then in force. No jurisdictional question was there present. Lack of due process must" } ]

[ { "docid": "11291856", "title": "", "text": "NRAB. See Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), overruling Moore v. Illinois Cent. R.R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). Dismissing Sheehan’s petition, the district court ruled that it could not disturb the NRAB’s decision without violating the RLA because the respondent had failed to offer any grounds under § 153 First (q) that would give the court power to review his claims. The Tenth Circuit reversed. 576 F.2d 854 (10th Cir.1978). It held that the NRAB’s failure to consider the merits of Sheehan’s claims constituted a denial of due process. Furthermore, the circuit court, notwithstanding the provisions of § 153 First (q), suggested that courts might have the ability to reexamine “purely legal issues” on review. 576 F.2d at 856. In a brief per curiam opinion, the Supreme Court reversed. The Court’s opinion is somewhat ambiguous, chiefly because it was organized around the equally ambiguous opinion of the Tenth Circuit. The Court opined that if the Tenth Circuit based its ruling on the denial of due process by the NRAB for failing to consider Sheehan’s claim, then it was “simply mistaken,” because the NRAB’s opinion did in fact consider Sheehan’s tolling argument on the merits, and rejected it. See Sheehan, 439 U.S. at 92, 99 S.Ct. at 401. If, on the other hand, the Tenth Circuit intended merely to reverse the NRAB’s legal ruling on Sheehan’s tolling argument, then the court exceeded its jurisdiction under the RLA. Id. at 92-93, 99 S.Ct. at 401-02. The Supreme Court emphasized that a court cannot overturn an NRAB ruling just because it disagrees with the result or legal reasoning. In the context of this latter discussion — whether a court can overrule a “purely legal” determination of the NRAB — the Court discussed the exceedingly narrow review provisions of the RLA: “We have time and again emphasized that this statutory language means just what it says.” Id. at 93, 99 S.Ct. at 402. There currently exists a division among the circuits over whether Sheehan precludes due process review." }, { "docid": "16945800", "title": "", "text": "that the Supreme Court’s holding in Andreivs, which had forced employees into arbitration before an adjustment board, required that the courts give less deference to purely legal issues decided by an adjustment board. Sheehan v. Union Pacific R.R., 576 F.2d 854, 856 (10th Cir.1978). Thus, the Tenth Circuit held that “the failure of the Board to consider tolling under these circumstances deprived Sheehan of an opportunity to be heard in violation of his right of due process.” Id. at 857. The Supreme Court reversed and reinstated the adjustment board’s award, Sheehan, 439 U.S. at 94, 99 S.Ct. at 402-03, holding that the Tenth Circuit had exceeded its jurisdiction. The Court stated that its holding in Andrews had not provided courts with greater latitude to correct an adjustment board’s errors of law: Characterizing the issue presented as one of law, as the Court of Appeals seemed to do here, does not alter the availability or scope of judicial review: The dispositive question is whether the party’s objections to the Adjustment Board’s decision fall within any of the three limited categories of review provided for in the Railway Labor Act. Id. at 93, 99 S.Ct. at 402. Thus, because Sheehan had failed to show that the adjustment board’s order fell within any of the three statutory categories for review, the order should have been enforced by the courts. Id. at 94, 99 S.Ct. at 402-03. Although the Supreme Court’s decision in Sheehan demonstrates the Court’s concern for the finality of adjustment board awards under the Railway Labor Act, we disagree with the union and Madison’s argument that it precludes federal courts from vacating such an award on public policy grounds. The Court in Sheehan did not address any public policy arguments; it merely responded to the Tenth Circuit’s assertion that federal courts may review purely legal issues raised in arbitration awards. Moreover, we have uncovered no other opinion by either the Supreme Court or another court of appeals that expressly rejects the idea that federal courts may use public policy as a basis for overturning a board award rendered under the Railway" }, { "docid": "10909285", "title": "", "text": "a competing state law claim necessarily invokes federal law. III. In analyzing the statutory scheme of the RLA, we conclude that it “pervasively occupies” the field of railroad labor disputes, completely preempting state law claims arising out of collective bargaining agreements. The Railway Labor Act was enacted by Congress to promote stability in labor-management relations in the railroad industry. Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). To effectuate this pur pose the RLA provides for mandatory administrative grievance procedures and remedies for “minor disputes” arising from the employment relationship between a railroad employee and the carrier. A minor dispute is one involving the interpretation or application of an existing collective bargaining agreement. The RLA grants to the NRAB exclusive power to resolve all minor “disputes between an employee or group of employees and a carrier * * * growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions * * *.” 45 U.S.C. § 153(1)(i). NRAB decisions in disputes arising out of collective bargaining agreements are subject to limited judicial review in the federal courts. Once the administrative remedy with the NRAB has been exhausted, the party may not relitigate the issue in an independent judicial proceeding. Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 325, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972). In compliance with the RLA requirements, federal courts have routinely dismissed a wide variety of state law claims, holding that statutory grievance procedures under the RLA are the mandatory and exclusive federal remedy for resolving minor disputes. “In enacting this legislation * * * Congress considered it essential to keep these so-called ‘minor disputes’ within the National Railroad Adjustment Board and out of the courts.” Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (emphasis added). See also Andrews, 406 U.S. at 325, 92 S.Ct. at 1565; Brotherhood of Locomotive Eng’rs v. Louisville & Nashville R.R. Co., 373 U.S. 33, 38, 83 S.Ct. 1059," }, { "docid": "18787269", "title": "", "text": "a work-related injury. . Stephens submitted additional information from subsequent examinations reiterating his fitness for work despite the disc defect: (1) an August 10, 1982 report by Dr. Tom Phillips, Orthopaedic Surgeon, diagnosed disc degeneration but otherwise completely fit for any type of work; (2) an August 25, 1982 report by Dr. George Koppert, Orthopaedic Surgeon, stating Stephens should be working; and (3) an August 27, 1982 report by Dr. Hari Misir, recommending reinstatement of Stephens to his former employment. . The district court failed to issue a written opinion but the Order dismissing his Complaint relied on the exclusive jurisdiction of the NRAB and the failure of the plaintiffs claims to state a cause of action under the Handicapper's Act. . Two expressed purposes of the RLA entail \"provid[ing] for the prompt and orderly settlement of all disputes concerning rates of pay, rules, or working conditions; ... [and] ... providing] for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretations or application of agreements governing rates of pay, rules, or working conditions.” 45 U.S.C. § 151a(4) and (5). . Minor dispute resolution by the NRAB is judicially reviewable in limited circumstances: Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. Sheehan, 439 U.S. at 93, 99 S.Ct. at 402, citing 45 U.S.C. § 153 First (q). Stephens’ Complaint fails to allege these grounds as a basis for judicial review of this matter. Failure to initially utilize the contract grievance procedures or the NRAB results in dismissal of an employee’s or Carrier’s suit brought directly in district court. Kaschak, 707 F.2d at 905, citing McKinney v. International Association of Machinists, 624 F.2d 745 (6th Cir.1980); Baker, 482 F.2d at 228. . Claims by employees concerning alleged wrongful discharge necessarily fall within the ambit of minor disputes. Andrews v. Louisville" }, { "docid": "2085528", "title": "", "text": "406 U.S. 320, 325, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972) (citations omitted and emphasis added). It provided an extremely narrow right of appeal from the NRAB: [I]n at least some situations the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not reliti-gate that issue in an independent judicial proceeding. He is limited to the judicial review of the Board’s proceedings that the Act itself provides. In such a case the proceedings afforded by 45 U.S.C. § 153 First (i), will be the only remedy available to the aggrieved party. Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. Sheehan, 439 U.S. at 93, 99 S.Ct. at 402; accord Andrews, 406 U.S. at 325, 92 S.Ct. at 1565; Crusos, 786 F.2d at 972; 45 U.S.C. § 153 First (q) (1982). Based on the RLA’s structure and legislative history, our court and others have ruled that the grievance and arbitral mechanisms the act establishes are essentially the exclusive means for railroad employees to assert “ ‘minor’ breaches of collective bargaining contracts ...of which the firing of an individual worker allegedly for cause is a classic illustration.” Graf, 790 F.2d at 1348 (emphasis added); accord Crusos, 786 F.2d at 972 (“The [RLA] gives no right of action to railroad employees to sue their employers in federal court for wrongful discharge ... [and] employees’ reinstatement actions are exclusively within the jurisdiction of the [NRAB].”); Gonzalez v. Southern Pacific Transportation Co., 773 F.2d 637, 642-43 (5th Cir.1985); Peterson v. Air Line Pilots Association, International, 759 F.2d 1161, 1169 (4th Cir.) (“Garden variety wrongful discharge actions, so-called ‘minor disputes’ involving rights under the collective bargaining agreement ... are routinely held to be within" }, { "docid": "11079282", "title": "", "text": "(discussing Union Pac. R.R. Co. v. Price, 360 U.S. 601, 616-17, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959)); see also Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978) (“Congress considered it essential to keep these so-called ‘minor’ disputes within the Adjustment Board and out of the courts. The effectiveness of the Adjustment Board in fulfilling its task depends on the finality of its determinations.” (citation omitted)). Accordingly, “the federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. They may not substitute their judgments for those of the Board divisions.” Diamond v. Terminal Ry. Ala. State Docks, 421 F.2d 228, 233 (5th Cir.1970); see also United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) (“Courts thus do not sit to hear claims of factual or legal error by an arbitrator as an appellate court does in reviewing decisions of lower courts.”). We have described the scope of our review of NRAB awards as “among the narrowest known to the law.” Diamond, 421 F.2d at 233. The findings of the NRAB are conclusive, and we review only for: (1) failure to comply with the RLA; (2) failure to conform or confine itself to matters within its jurisdiction; and (3) fraud or corruption. 45 U.S.C. § 153(q). “Absent one of these, the award is binding upon the parties and the findings and order are conclusive in Court.” E. Air Lines, Inc. v. Transp. Workers Union, 580 F.2d 169, 172 (5th Cir.1978). The NRAB’s interpretation must stand unless we find it to be “wholly baseless and completely without reason.” Id. (quoting Gunther v. San Diego & Ariz. E. Ry. Co., 382 U.S. 257, 261, 86 S.Ct. 368, 15 L.Ed.2d 308 (1965)). B. The NRAB ignored an element of Article XV by sustaining the claims without making a finding on whether the furloughs were a direct result of increased subcontracting. After describing the base level of subcontracting, Article XV states that “[i]n the event that subcontracting increases" }, { "docid": "2134853", "title": "", "text": "state court arising out of his discharge. When Sheehan later filed his arbitration claim with the Board, the Board dismissed it as untimely, rejecting Sheehan’s argument that the time limit should have been equitably tolled. The district court upheld the Board’s order, but the Tenth Circuit reversed. The Tenth Circuit stated that the Board’s order denied Sheehan due process, and because his appeal involved a legal, as opposed to factual, determination, the court was permitted a broader scope of review than provided in § 153. The Supreme Court reversed and reinstated the Board’s order. The Court stated: Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. Only upon one or more of these bases may a court set aside an order of the Adjustment Board. Id. at 92, 99 S.Ct. at 402 (internal citations omitted). The Court reasoned that nothing in the statute provides for a broader scope of review when the issues are purely legal: “We have time and again emphasized that this statutory language means what it says.” Id. at 93, 99 S.Ct. at 402. In particular, the Court was concerned with honoring the strictures set forth by Congress: A contrary conclusion would ignore the terms, purposes and legislative history of the Rahway Labor Act. In enacting this legislation, Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes____ Congress considered it essential to keep these so-called “minor” disputes within the Adjustment Board and out of the courts. The effectiveness of the Adjustment Board in fulfilling its task depends on the finality of its determinations. Id. at 94, 99 S.Ct. at 402 (internal citations omitted). Defendant argues that Sheehan is inapposite because the Court was not confronted with the question of whether the scope of review should be expanded where" }, { "docid": "17525332", "title": "", "text": "applicable to special adjustment board proceedings it would have so stated in the text of the statute. Appellant cites no judicial authority for this proposition. Appellant also makes no attempt to analyze the legislative history of the 1966 amendments. Appellant’s only analysis of this issue, other than the statutory construction argument is contained in a short paragraph at page 14 of its brief to the Court: The proceedings by way oof [sic] the Special Law Boards were designed to provide labor and management an expeditious way of handling minor disputes without going to the National Railroad Adjustment Board. There was no reason why the Special Law Board proceedings had to be handled in the same way that proceedings were handled in the National Railroad Adjustment Board. Appellee responds by arguing that a review of the legislative history of the 1966 amendments demonstrates that Congress intended that parties to special adjustment board proceedings have the same access to limited district court review as would parties to NRAB proceedings. The purpose of the 1966 Amendments is set out in Senate Report No. 1201. The Senate Report states that the purpose of the amendment was “to eliminate the large backlog [of cases pending before the NRAB] . and to provide equal opportunity for limited judicial review of awards of the [NRAB] to employees and employers.” The Report further states: The bill also provides that judicial review of orders of the National Railroad Adjustment Board, and of boards established under this legislation, relating to minor disputes in the railroad industry would be available to either party but limited to the determination of questions traditionally involved in arbitration legislation — whether the tribunal had jurisdiction of the subject, whether the statutory requirements were complied with, and whether there was fraud or corruption on the part of a member of the tribunal. [Emphasis added.] It is clear from the above legislative history that Congress intended the district courts to exercise limited judicial review over determinations of the NRAB and over determinations of special adjustment boards. We affirmed a district court conclusion to this effect in United" }, { "docid": "18107591", "title": "", "text": "conclusive on the parties.” 80 Stat. 208, 209-210. Furthermore, Congress felt that, “because the [NRAB] has been characterized as an arbitration tribunal, the grounds for review should be limited to those grounds commonly provided for review of arbitration awards”: whether the NRAB failed to comply with statutory requirements, whether the NRAB had jurisdiction over the claim, and whether there was “fraud or corruption” on the part of any NRAB member. S. Rep. 89-1201, at 3, 6-7. These three grounds are reflected in § 153(q) First, and § 153(p) First was amended accordingly. 80 Stat. at 210. These judicial review provisions are narrow — indeed, in 1978, the Supreme Court suggested that “the scope of judicial review of Adjustment Board decisions is among the narrowest known to the law.” Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 91, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). Following the 1966 amendments, because judicial review was now equally available to employees, the Supreme Court overruled Moore. Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). After Andrews, it was clearly established law that employees had no choice but to rely solely on the NRAB for “some measure of justice” with respect to their minor disputes. Thus, as the law stands today, precisely because the RLA scheme for minor dispute resolution depends entirely on the effectiveness of the NRAB determinations, the narrow judicial review of those determinations is designed to protect the integrity of the NRAB arbitral process. B. Factual History Judicial review of possible corruption within the National Railroad Adjustment Board arbitral scheme is the subject of this suit. The suit arises out of the Railway’s discharge of Richard Kite, a conductor for the Railway, an employee of twenty-seven years, and a member of the Union. On the morning of January 17, 2005, the Railway conducted random blood alcohol testing of Kite and his crew, as they reported for service on a train traveling from Pasco, Washington to Vancouver, Canada. The breathalyser test reported Kite as having a blood alcohol level of 0.029 percent. Another" }, { "docid": "2085549", "title": "", "text": "reinstatement and back pay. See Shee-han, 439 U.S. at 94, 99 S.Ct. at 402; Andrews, 406 U.S. at 325, 92 S.Ct. at 1565; Buell, 771 F.2d at 1323; Beers, 703 F.2d at 429; Magnuson, 576 F.2d at 1369-70; see also Analysis, Section B-2, supra. Allowing employees like Lewy to challenge their discharges in court under the FELA will directly undermine these objectives, and will enable employees effectively to circumvent the Supreme Court’s and our decisions holding that the RLA preempts most state-created judicial remedies for wrongful discharge. See, e.g., Andrews, 406 U.S. at 323-326, 92 S.Ct. at 1564-65; Beers, 703 F.2d at 429; Magnuson, 576 F.2d at 1369-70; see also Analysis, Section B-2, supra. We cannot conclude that Congress intended such a result. Furthermore, permitting wrongful discharge claims to be litigated in courts under the FELA will undermine the integrity and independence of the NRAB in resolving such claims. Even in cases like the present one, where the NRAB reviewed Lewy’s wrongful discharge claim and ordered him to be reinstated prior to any court litigation under the FELA, allowing courts to supplement the remedies ordered by the NRAB will necessarily infringe upon its decision-making authority and its ability to effect binding resolutions of “minor” disputes. The Supreme Court has indicated that in enacting the RLA, Congress “created [the NRAB] as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers,” and the Court has noted that the NRAB’s “effectiveness ... in fulfilling its task depends on the finality of its determinations. ” Sheehan, 439 U.S. at 94, 99 S.Ct. at 402 (emphasis added). Yet if employees are permitted to bring FELA actions whenever the NRAB rules that they have been wrongfully discharged, or when the NRAB rejects such claims, the NRAB’s determinations of such issues will never effectively be “final.” In Lewy’s case, for example, the NRAB ordered him reinstated based purely upon procedural grounds, and did not reach the merits of his wrongful discharge claims; it thus achieved an equilibrium in Lewy’s case without interpreting" }, { "docid": "13107009", "title": "", "text": "on April 2, 1985. During the pendency of this appeal, the NRAB moved to dismiss it from the action and moved to withdraw its brief. A panel of this court granted the motions on November 7, 1985, finding that the NRAB is “not a proper body to a lawsuit; it is an adjudicative body and has no interest in the outcome of this litigation.” Accordingly, Seaboard is now the sole appellee. II. We must determine whether the district court erred in dismissing Jones’ complaint, thereby refusing to compel the NRAB to reopen and reconsider its 1979 decision. Judicial review of an award by the NRAB has been described as “among the narrowest known to the law.” Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 233 (5th Cir.1970). The Railway Labor Act (Act) expressly provides that awards of the NRAB “shall be final and binding upon both parties to the dispute.” 45 U.S.C. § 153 First (m). The Supreme Court has recognized that judicial review of these “final and binding” awards is limited to three specific grounds: “(1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. 45 U.S.C. § 153 First (q).” Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978). If an appellant cannot satisfy any of these three grounds, review cannot be granted. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 325, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972) (“A party who has litigated an issue before the Adjustment Board on the merits ... is limited to the judicial review of the Board’s proceedings that the Act itself provides.”). Our Circuit recently applied this narrow standard of review in Jones v. St. Louis-San Francisco Railway Co., 728 F.2d 257, 261 (6th Cir.1984). This standard of review is narrower even than the highly deferential “abuse of discretion” standard. Brotherhood of Locomotive Engineers v. Atchison, Topeka" }, { "docid": "2085550", "title": "", "text": "under the FELA, allowing courts to supplement the remedies ordered by the NRAB will necessarily infringe upon its decision-making authority and its ability to effect binding resolutions of “minor” disputes. The Supreme Court has indicated that in enacting the RLA, Congress “created [the NRAB] as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers,” and the Court has noted that the NRAB’s “effectiveness ... in fulfilling its task depends on the finality of its determinations. ” Sheehan, 439 U.S. at 94, 99 S.Ct. at 402 (emphasis added). Yet if employees are permitted to bring FELA actions whenever the NRAB rules that they have been wrongfully discharged, or when the NRAB rejects such claims, the NRAB’s determinations of such issues will never effectively be “final.” In Lewy’s case, for example, the NRAB ordered him reinstated based purely upon procedural grounds, and did not reach the merits of his wrongful discharge claims; it thus achieved an equilibrium in Lewy’s case without interpreting the collective bargaining agreement or determining which party was at fault as to his discharge. However, if Lewy is permitted to litigate his discharge-related claims under the FELA, the NRAB’s resolution of these claims will not have concluded the dispute — the trial court will still be required to determine the lawfulness of his discharge. We find it unlikely that Congress intended such a result, given its desire that in most cases, the NRAB should provide a final, and hopefully peaceful, resolution of “minor” disputes. See Sheehan, 439 U.S. at 94, 99 S.Ct. at 402. Finally, to the extent that Lewy claims only that employees like himself, who sustain physical and emotional injuries com-pensable under the FELA, can also recover FELA damages for the aggravation of those injuries caused by wrongful discharges, we conclude that such a result would not be consistent with Congress’s intent in enacting the FELA and RLA. There is no coherent basis for singling out the discharges of these employees and treating them differently from all other discharges under the RLA," }, { "docid": "7503666", "title": "", "text": "application of a particular provision with reference to a specific situation. . . . ” 325 U.S. at 723, 65 S.Ct. at 1290; 455 F.2d at 154, n. 11. The difference between the two disputes is critical in determining district court jurisdiction. If a dispute is minor, the district court is without jurisdiction, as exclusive jurisdiction is in the National Railroad Adjustment Board, see Illinois Central R.R. Co. v. Brotherhood R.R. Trainmen, 398 F.2d 973 (7th Cir. 1968); 45 U.S.C. § 153 First (i) (1970), whereas if a dispute is major, the court has power to enjoin changes to preserve the status quo, 45 U.S.C. § 156 (1970), and the claim is submitted for voluntary arbitration to the National Mediation Board. 571 F.2d at 754 n. 6. More recently, the Supreme Court emphasized the purposes underlying Congress’s commitment of minor disputes to the Board of Adjustment. Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor” disputes within the Adjustment Board and out of the courts, (citations omitted). Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (per curiam). B. Since the instant action does not involve a dispute over the formation of a collective bargaining agreement or efforts to secure one, IAM understandably does not contend that its claims present a major dispute. (A. 100). According to IAM, however, neither does the matter at issue here involve a minor dispute. Instead IAM argues that its complaint is based on violations of rights provided by the Act, and as such, the controversy is not within the scope of the statutory scheme providing for resolution through arbitration. In its complaint, IAM charged" }, { "docid": "22123477", "title": "", "text": "all “disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions”, provided that company grievance procedures had been exhausted previously. The Board consists of four divisions, each empowered to adjudicate disputes in certain specific trades. Each division consists equally of members designated by the railroads and members designated ~by the national unions. Once grievance mechanisms have been exhausted, any party governed by the • contract has a right to bring the dispute before the Board; its jurisdiction does not depend upon the mutual consent of the employees and the railroad. Each party also has a right to argue orally before the division handling the dispute. The distinguishing mark of the NRAB, however, as contrasted with the original adjustment boards, is that a deadlocked division must choose a “neutral person” as a referee to decide the case. That feature, of course, puts the dispute beyond the direct control of the representative of either side; it creates statutory, compulsory arbitration with a bite. Having created this body of railroad men to solve disputes within their own field of expertise, Congress then indicated that it did not want the work of the Board to be readily undone by the courts. The Act as amended in 1934 provided that the NRAB’s awards were to be “final and binding upon both parties to the dispute, except insofar as they shall contain a money award”. A separate amending section, however, provided for suits by employees to enforce awards in their favor handed down by the Board: “on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated.” The apparent conflict between the “final and binding” provision and the “pri-ma facie evidence” provision was resolved — temporarily—by the Supreme Court in Elgin, Joliet & Eastern R. Co. v. Burley, 1944, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886. “In some instances judicial review and enforcement of" }, { "docid": "2085527", "title": "", "text": "of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor” disputes within the NRAB and out of the courts. Sheehan, 439 U.S. at 94, 99 S.Ct. at 402 (citations omitted and emphasis added). Thus, RLA section 3 First (i), 45 U.S.C. § 153 First (i), provides that all “disputes between [railroad] employees and ... carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” — so-called “minor disputes”— cannot be litigated in court, but must instead be referred to the NRAB for compulsory arbitration. 45 U.S.C. § 153 First (i); see Crasos, 786 F.2d at 972; Graf v. Elgin, Joliet and Eastern Railway Co., 790 F.2d 1341, 1348 (7th Cir.1986); Lancaster, 778 F.2d at 812. Moreover, Congress did not provide for automatic judicial review of the NRAB’s determinations: Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 325, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972) (citations omitted and emphasis added). It provided an extremely narrow right of appeal from the NRAB: [I]n at least some situations the Act makes the federal administrative remedy exclusive, rather than merely requiring exhaustion of remedies in one forum before resorting to another. A party who has litigated an issue before the Adjustment Board on the merits may not reliti-gate that issue in an independent judicial proceeding. He is limited to the judicial review of the Board’s proceedings that the Act itself provides. In such a case the proceedings afforded by 45 U.S.C. § 153 First (i), will be the only remedy available to the aggrieved party. Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. Sheehan, 439 U.S. at" }, { "docid": "771017", "title": "", "text": "judicial proceeding on the merits of the firing decision. In reaching this holding the Supreme Court noted that the employee’s only right not to be discharged at will arose out of the collective bargaining agreement. Thus, the only available judicial review of an Adjustment Board order is pursuant to 45 U.S.C. § 153 First (q). This review allows a Board decision to be set aside only if: (1) the Board failed to act in accordance with the Act; (2) the order was not in conformance with the Board’s jurisdiction; or (3) there was fraud or corruption on the part of a member of the Board. In 1978, the Supreme Court reversed a decision of the Court of Appeals for the Tenth Circuit which had ordered the district court to grant judicial review of a Board decision. Union Pacific Railway v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). In Sheehan, the Supreme Court stated: The dispositive question is whether the party’s objections to the Adjustment Board’s decision fall within any of the three limited categories of review provided for in the Railway Labor Act. Section 153 First (q) unequivocally states that the “findings and order of the [Adjustment Board] shall be conclusive on the parties” and may be set aside only for the three reasons specified therein. We have time and again emphasized that this statutory language means just what it says. Id. at 93, 99 S.Ct. at 402. The Court in Sheehan emphasized Congressional intent to provide a tribunal composed of worker and management representatives to secure “the prompt, orderly and final settlement of grievances.” The Court stated that the effectiveness of the Board in fulfilling this task “depends on the finality of its determinations,” which finality the Court noted is normally in the interest of the employee who is spared expensive and time-consuming appeals. At least one circuit court has indicated that this decision abolishes the review of Board decisions on due process grounds. United Steelworkers of America v. Union Railroad, 648 F.2d 905, 911-912 (3d Cir. 1981). Prior to the Supreme Court decision in" }, { "docid": "16945799", "title": "", "text": "the Railway Labor Act’s review scheme in 1934, the Supreme Court has not seen fit to create any additional nonstatutory bases for review. The strongest support for the union and Madison’s argument stems from the Supreme Court’s opinion in Union Pacific R.R. v. Sheehan. In that case, Sheehan had filed a breach of contract .suit in state court arising out of his discharge. While his state court case was pending, the United States Supreme Court decided Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), in which the Court held that a railroad employee alleging a violation of a collective bargaining agreement must submit the matter to arbitration under the Railway Labor Act. When Shee-han subsequently filed his arbitration claim before the National Railroad Adjustment Board, the Board dismissed his claim as untimely, rejecting Sheehan’s claim that the time limits should have been equitably tolled while his state court suit was pending. The district court upheld the Board’s order, but the Tenth Circuit reversed. The Tenth Circuit reasoned that the Supreme Court’s holding in Andreivs, which had forced employees into arbitration before an adjustment board, required that the courts give less deference to purely legal issues decided by an adjustment board. Sheehan v. Union Pacific R.R., 576 F.2d 854, 856 (10th Cir.1978). Thus, the Tenth Circuit held that “the failure of the Board to consider tolling under these circumstances deprived Sheehan of an opportunity to be heard in violation of his right of due process.” Id. at 857. The Supreme Court reversed and reinstated the adjustment board’s award, Sheehan, 439 U.S. at 94, 99 S.Ct. at 402-03, holding that the Tenth Circuit had exceeded its jurisdiction. The Court stated that its holding in Andrews had not provided courts with greater latitude to correct an adjustment board’s errors of law: Characterizing the issue presented as one of law, as the Court of Appeals seemed to do here, does not alter the availability or scope of judicial review: The dispositive question is whether the party’s objections to the Adjustment Board’s decision fall within any of" }, { "docid": "2085526", "title": "", "text": "basis for federal subject-matter jurisdiction over wrongful discharge claim against railroad). 2. Scope of the RLA’s Coverage Congress enacted the RLA in 1926 in order to promote stability in the railroad industry and to provide for prompt and efficient resolution of labor-management disputes arising out of railroad collective bargaining agreements. See Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978) (per curiam). Whereas the FELA is “a statutory mechanism designed [by Congress] to give railroad employees a federal right to sue [their employers],” Fox, 739 F.2d at 931, and therefore guarantees them access to the courts, Congress specifically intended in the RLA to keep railroad labor disputes out of the courts and instead requires the use of grievance procedures and arbitration: In enacting [the RLA], Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. The NRAB was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor” disputes within the NRAB and out of the courts. Sheehan, 439 U.S. at 94, 99 S.Ct. at 402 (citations omitted and emphasis added). Thus, RLA section 3 First (i), 45 U.S.C. § 153 First (i), provides that all “disputes between [railroad] employees and ... carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions” — so-called “minor disputes”— cannot be litigated in court, but must instead be referred to the NRAB for compulsory arbitration. 45 U.S.C. § 153 First (i); see Crasos, 786 F.2d at 972; Graf v. Elgin, Joliet and Eastern Railway Co., 790 F.2d 1341, 1348 (7th Cir.1986); Lancaster, 778 F.2d at 812. Moreover, Congress did not provide for automatic judicial review of the NRAB’s determinations: Andrews v. Louisville & Nashville Railroad Co.," }, { "docid": "22384506", "title": "", "text": "Gunther v. San Diego & A. E. R. Co., 382 U. S. 257, 263 (1965); Locomotive Engineers v. Louisville & Nashville B. Co., supra, at 38; Union Pacific R. Co. v. Price, 360 U. S. 601, 616 (1969). And nothing in our opinion in Andrews suggests otherwise. The determination by the Adjustment Board that respondent had failed to file his appeal within the time limits prescribed by the governing collective-bargaining agreement is one which falls within the above-quoted language precluding judicial review. A contrary conclusion would ignore the terms, purposes and legislative history of the Railway Labor Act. In enacting this legislation, Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. See Gunther v. San Diego & A. E. R. Co., supra; Union Pacific R. Co. v. Price, supra; Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239 (1950). The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Union Pacific R. Co. v. Price, supra, at 611; Elgin J. & E. R. Co. v Burley, 327 U S. 661, 664 (1946). Congress considered it essential to keep these so-called “minor” disputes within the Adjustment Board and out of the courts. Trainmen v. Chicago, R. & I. R. Co., 353 U. S. 30, 40 (1957). The effectiveness of the Adjustment Board in fulfilling its task depends on the finality of its determinations. Normally finality will work to the benefit of the worker: He will receive a final administrative answer to his dispute; and if he wins, he will be spared the expense and effort of time-consuming appeals which he may be less able to bear than the railroad. Union Pacific R. Co. v. Price, supra, at 613-614. Here, the principle of finality happens to cut the other way. But evenhanded application of this principle is" }, { "docid": "18787270", "title": "", "text": "of pay, rules, or working conditions.” 45 U.S.C. § 151a(4) and (5). . Minor dispute resolution by the NRAB is judicially reviewable in limited circumstances: Judicial review of Adjustment Board orders is limited to three specific grounds: (1) failure of the Adjustment Board to comply with the requirements of the Railway Labor Act; (2) failure of the Adjustment Board to conform, or confine, itself to matters within the scope of its jurisdiction; and (3) fraud or corruption. Sheehan, 439 U.S. at 93, 99 S.Ct. at 402, citing 45 U.S.C. § 153 First (q). Stephens’ Complaint fails to allege these grounds as a basis for judicial review of this matter. Failure to initially utilize the contract grievance procedures or the NRAB results in dismissal of an employee’s or Carrier’s suit brought directly in district court. Kaschak, 707 F.2d at 905, citing McKinney v. International Association of Machinists, 624 F.2d 745 (6th Cir.1980); Baker, 482 F.2d at 228. . Claims by employees concerning alleged wrongful discharge necessarily fall within the ambit of minor disputes. Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320, 323-24, 92 S.Ct. 1562, 1564-65, 32 L.Ed.2d 95 (1972). As reasoned by the Court in Andrews, 406 U.S. at 324, 92 S.Ct. at 1505: But the very concept of \"wrongful discharge” implies some sort of statutory or contractual standard that modifies the traditional commonlaw rule that a contract of employment is terminable by either party at will. Here it is conceded by all that the only source of petitioner’s right not to be discharged, and therefore to treat an alleged discharge as a \"wrongful\" one that entitles him to damages, is the collective-bargaining agreement between the employer and the union____ The existence and extent of such an obligation in a case such as this will depend on the interpretation of the collective-bargaining agreement. Further, as stated in Magnuson v. Burlington Northern, Inc., 576 F.2d 1367, 1369 (9th Cir. 1978): “Artful pleading cannot conceal the reality that the gravamen of the complaint is wrongful discharge.\" . Stephens attempts to support his position utilizing Johnson v. American Airlines, Inc., 487" } ]

[ { "docid": "23365586", "title": "", "text": "not, in the end, rate). These communications concerned what PaineWebber needed to do to earn an “investment grade” rating from Fitch. Specifically, ASB alleges that Paine-Webber and Fitch communicated about (1) whether Fitch would rate the Trust Certificates; (2) whether this type of security could ever be rated investment grade; (3) the methodology of the modeling used to perform the ratings; and (4) what changes to the deal’s structure would be required to achieve the desired rating. According to ASB, PaineWebber claims to have relied on information it received from Fitch in making certain marketing representations to ASB as to the risk level and anticipated rate of return of the investment. Because discovery materials produced by PaineWebber to ASB are incomplete, ASB subpoenaed Moody’s and Fitch seeking information about their dealings with PaineWebber in regard to the investment by ASB. The subpoenas were served on August 26, 2002, in the Southern District of New York. Fitch refused to produce any documents or submit to any depositions, claiming the protection of the New York Press Shield Law. After negotiations failed, ASB moved to enforce the subpoenas, and Fitch counter-moved to quash the subpoenas. The district court issued an Opinion and Order dated December 16, 2002, resolving the issue in ASB’s favor. When Fitch refused to comply with the subpoena, the district court held Fitch in contempt in an Order and Judgment dated January 16, 2003. This appeal followed. STANDARD Of REVIEW Motions to compel and motions to quash a subpoena are both “entrusted to the sound discretion of the district court.” United States v. Sanders, 211 F.3d 711, 720 (2d Cir.2000). This principle is in keeping with the traditional rule that “ ‘[a] trial court enjoys wide discretion in its handling of pre-trial discovery, and its rulings with regard to discovery are reversed only upon a clear showing of an abuse of discretion.’ ” In re DG Acquisition Corp., 151 F.3d 75, 79 (2d Cir.1998) (quoting Cruden v. Bank of N. Y, 957 F.2d 961, 972 (2d Cir.1992)) (alteration in original). “A district court abuses its discretion when ‘(1) its decision" } ]

[ { "docid": "2837446", "title": "", "text": "must be satisfied that a district judge has exercised his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate’s report and recommendations. The defendants, in conceding that the district court erred in not reviewing the actual testimony “herein,” suggest that “for reasons of judicial economy,” we review the transcript, make our own de novo review of the magistrate’s findings and recommendations, and either adopt or reverse those findings and recommendations. In support of such procedure, they cite United States v. Lewis, 621 F.2d 1382, 1387 (5th Cir.1980). We are unwilling to adopt such a procedure, which would substitute fact finding at the appellate level for fact-finding at the trial level. The fact-finding responsibility has long been recognized as one for the trial court and sound practice suggests strict observance of this division of responsibility between trial and appellate courts except in the most exceptional circumstances. See Anderson v. Bessemer City, — U.S. —, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). It accordingly follows that the judgment and order of dismissal herein, including that of the defendant Cook, must be vacated and the cause must be remanded to the district court for proceedings consistent with the foregoing decision. The plaintiff, also, appeals the denial of his request for appointment of counsel to assist in the presentation of his case. While we do not think appointment of counsel in pro se cases should be automatic but should be within the informed judgment of the district court, we are of the opinion that in view of the unusual proceedings to date in this case, the district judge should reconsider his denial of plaintiff’s request for the appointment of counsel to assist the plaintiff in further proceedings herein. REVERSED and REMANDED WITH INSTRUCTIONS. . Practice under the Magistrate Act is covered in Fed.R.Civ.P. 72. . He had already been granted the right to proceed in forma pauperis. . For an excellent explanation of the Magistrate Act, see 12 Wright & Miller, Federal Practice & Procedure § 3076.1, et seq. The history of the Act is also detailed in McCabe," }, { "docid": "19825095", "title": "", "text": "by requiring a party to produce relevant records not in its physical possession when the records can be obtained easily from a third-party source. The regulation here in question attempts to block this line of access completely or at least make the route far more circuitous, inconvenient, and expensive. The Court finds no compelling reason to relieve the RTC from the relatively straightforward discovery methods outlined in Rule 34 simply because the source agency has attempted to mandate a different procedure. Furthermore, application of 12 C.F.R. § 510.5 in this case would unfairly place the defendants at a great disadvantage. By virtue of RTC’s agreements with OTS and 12 U.S.C. § 1821(o), RTC has unrestricted access to all regulatory documents concerning Otero, the failed thrift that is the subject of this lawsuit. RTC has undoubtedly reviewed a substantial amount of regulatory documentation in connection with this case and may well have many of these documents in its physical possession. The defendants should not be relegated to the much more cumbersome procedure of serving a subpoena on the OTS and then litigating any objections to the subpoena in Washington, D.C. simply to obtain the same documents which the plaintiff RTC can and has obtained from OTS on request. Accordingly, it is hereby ORDERED that the defendants’ Motion to Compel RTC to Provide Reasonable Discovery is GRANTED in part. RTC shall not be permitted to object to requests for the production of otherwise relevant and non-privileged documents on the ground that they are in the physical possession of the OTS. . The OTS is an office in the Department of Treasury and is responsible for regulating and supervising all federally insured savings and loan associations. 12 U.S.C. § 1462a. It is the successor to the Federal Home Loan Bank Board. Id. RTC is an agency of the United States. 12 U.S.C. § 1441a(b). It may act as a conservator or receiver of a savings association when appointed to do so by the director of the OTS. 12 U.S.C. § 1464(d)(2)(H). . The regulations further provide that any subpoena directed to OTS must" }, { "docid": "23441698", "title": "", "text": "the privacy and confidentiality exemptions were applicable. The government responds that the material sought was uniformly exempt, and accordingly that the procedure followed by the district court was proper because any further disclosure would reveal exempt information. II. We turn first to an examination of the basic procedures to be used in Freedom of Information Act cases. We also examine the nature of the Section 7(C) and (D) exemptions in order to determine the merits of Lame’s claim that the procedure employed by the district court were improper. A. Underlying the Freedom of Information Act, as we recently noted in Coastal Gas Corp. v. Department of Energy, 644 F.2d 969 (3d Cir. 1981), is a belief that “an informed electorate is vital to the proper operation of a democracy.” Id., at 974, quoting S.Rep.No.813, 89th Cong., 1st Sess. 3 (1965). Upon an appropriate FOIA request, federal agencies are therefore required to release promptly the information requested that is in their possession, subject to nine statutory exemptions. If the agency has failed to release the requested information, and administrative appeals have been exhausted, the individual seeking disclosure can obtain review of the agency’s denial in a federal district court. Review is de novo and the Act places the burden of establishing that the requested materials are exempt from disclosure upon the agency. 5 U.S.C. § 552(a)(4)(B). Any reasonably segregable, non-exempt portion of a record is to be made available to the person requesting that record. Id. The District of Columbia Circuit has developed FOIA procedures designed to allow informed adversarial argument, promote efficient judicial review at both the trial and appellate levels, and discourage conclusory claims of exemption. In the ordinary case, the agency must provide a detailed public justification for its claims of exemption. This justification must be accompanied by an index that “would correlate statements made in the Government’s refusal justification with the actual portions of the document.” Vaughn v. Rosen, 484 F.2d 820, 827 (D.C.Cir.1973) cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1979). There is support for the Vaughn procedures in the legislative history," }, { "docid": "7984347", "title": "", "text": "in isolation, we cannot say that the court abused its discretion in applying the mosaic theory or in redacting the transcript. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995) (reviewing denial of access to records for abuse of discretion). Kasza’s reliance on Freedom of Information Act cases such as Wiener v. FBI, 943 F.2d 972 (9th Cir.1991), for the proposition that the district court should have made specific findings with respect to each particular redaction is misplaced, because we have already determined that the state secrets privilege applies. Nor was the basis upon which the government requested, and the district court approved, redaction inadequate. Declarations in the record offer sufficient support. As we explained in our prior opinion, based on our in camera review of classified declarations, we held “that the scope of the privilege asserted by the Air Force was not overbroad.” Kasza, 133 F.3d at 1170. Finally, Kasza maintains that she should have been heard on the merits of the proposed redactions. She was, of course, given the opportunity to argue whether the state secrets privilege applies at all. However, having lost on that issue and her case having been dismissed on account of it, her interest in discrete redactions from the transcript is remote and was adequately considered through the briefing that was submitted. Finally, Kasza and DR Partners note that the public’s First Amendment interest in access to court records may be overcome only by an overriding interest that closure is essential and narrowly tailored. See, e.g., Press-Enter. Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Associated Press v. United States Dist. Court, 705 F.2d 1143 (9th Cir.1983). However, we have already accepted the government’s position that disclosure of protected information in these cases risks significant harm to national security. Kasza, 133 F.3d at 1170. Public release of redacted material is an appropriate response. This leaves only the question whether the court acted within its discretion by unsealing only the redacted version of the June 20 transcript. We believe that it did. AFFIRMED. . DR Partners dba Las" }, { "docid": "19274499", "title": "", "text": "delay was not clearly erroneous. The court also noted that the exhibits in the record before the bankruptcy court demonstrated that Harris had not paid post-petition property taxes or filed his tax returns. Harris sought reconsideration of the district court’s dismissal of his appeal, but missed the filing deadline by one day. Harris made no request to extend the deadline and did not provide any “facts or argument that would justify accepting his late filing based on excusable neglect under Bankruptcy Rule 9006(b)(1).” Accordingly, on February 16, 2005, the district court denied his motion for reconsideration. Harris timely appeals from the dismissal of his appeal and the denial of his motion for reconsideration. DISCUSSION We review a district court’s dismissal of a bankruptcy appeal on procedural grounds for abuse of discretion. See In re Lynch, 430 F.3d 600, 603 (2d Cir.2005) (per curiam); see also In re Tampa Chain Co., 835 F.2d 54, 55 (2d Cir.1987) (per curiam) (holding that the district court’s “decision to dismiss will be affirmed unless it has abused its discretion”). A district court abuses its discretion when it “applies legal standards incorrectly or relies upon clearly erroneous findings of fact, or proceed[s] on the basis of an erroneous view of the applicable law.” Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 398 (2d Cir.2004) (internal quotation marks and citation omitted; alteration in original). A. Requirements under Bankruptcy Rule 8006 Before reaching the question of what standard the district court should have applied in dismissing Harris’s appeal, we must first address Harris’s argument that he had not violated any procedural rule such that the district court could have sanctioned him at all, let alone dismissed his appeal. Indeed, in his reply brief, Harris asserts that the district court erred in dismissing the appeal because the transcript from the June 23 hearing was not necessary to the appeal and contained only oral argument, not any testimony. Bankruptcy Rule 8006 governs what documents are required to perfect an appeal. It states that in pertinent part, the appellant shall file with the clerk and serve on the appellee a" }, { "docid": "7984346", "title": "", "text": "We do not agree. Kasza’s argument on the original appeal focused on the transcript, as did her argument on remand. She did not ask the district court to clarify its ruling, which was limited to the transcript, or to reconsider it. In these circumstances we cannot fault the district court for its approach. Kasza further contends that the court did not engage in a reasoned evaluation of the government’s proposed redactions. Again, we disagree. The court was fully familiar with the history of this litigation, including classified declarations that explained the mosaic theory of classification and its relationship to these cases and to the matters at issue in the June 20 hearing. We previously upheld the district court’s finding that an Air Force manual which Kasza said was publicly available was classified. Kasza, 133 F.3d at 1170 n. 9. On remand, the court compared the proposed redacted version of the transcript with the unredacted version, and found that the redactions were consistent and classified. Even though some of the redactions may seem innocuous when viewed in isolation, we cannot say that the court abused its discretion in applying the mosaic theory or in redacting the transcript. See Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir.1995) (reviewing denial of access to records for abuse of discretion). Kasza’s reliance on Freedom of Information Act cases such as Wiener v. FBI, 943 F.2d 972 (9th Cir.1991), for the proposition that the district court should have made specific findings with respect to each particular redaction is misplaced, because we have already determined that the state secrets privilege applies. Nor was the basis upon which the government requested, and the district court approved, redaction inadequate. Declarations in the record offer sufficient support. As we explained in our prior opinion, based on our in camera review of classified declarations, we held “that the scope of the privilege asserted by the Air Force was not overbroad.” Kasza, 133 F.3d at 1170. Finally, Kasza maintains that she should have been heard on the merits of the proposed redactions. She was, of course, given the opportunity to argue" }, { "docid": "6986299", "title": "", "text": "1984 (Opp. exh. C). Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 251 (D.C.Cir.1977) held that failure of an agency to use Vaughn-type procedures was not grounds to reverse a judgment of that district court that the requested information was exempt. However, the appellate court did note in dicta that “we agree with Mead Data that the objective of the Vaughn requirements, to permit the requesting party to present its case effectively, is equally applicable to proceedings within the agency.” Id. at 251. The statute requires that, when the agency invokes an exception under FOIA, it must notify the requestor of “the reasons therefor, and of the right of such person to appeal to the head of the agency.” 5 U.S.C. § 552(a)(6)(A)(i). Administrative regulations further specify: The reply shall include a reference to the specific exemption under the Freedom of Information Act authorizing withholding of the records. The notice of denial shall contain a brief explanation of how the exemption applies to the record withheld and, if the deciding official considers it appropriate, a statement of why the exempt record is being withheld. 8 C.F.R. § 103.10(d)(2) (emphasis added). This language seems to require more information than just the number of pages withheld and an unexplained citation to the exemptions. However, a Vaughn index for each request would compound the problems of delay. The INS indicated at oral argument that it is currently experimenting with a new procedure that reveals more about what is being withheld. This new procedure apparently indicates what types of documents are being withheld, and correlates the documents to the exemptions relied upon. This court therefore believes that the present record does not justify the granting of the broad injunction which plaintiff requests. VI. The court recognizes that there are administrative problems in implementing the above decisions requiring the INS to comply with FOIA. Two require some discussion. This opinion has discussed the necessity for giving some priority to the requests of aliens who need the FOIA information for purposes of deportation or exclusion proceedings. Courts have been" }, { "docid": "19819002", "title": "", "text": "failed to establish that the transcript was material to his guilt. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Ladoucer repeatedly challenged Hartline’s credibility during trial, and the Government informed the jury during its opening statement and direct examination of Hartline that Hartline had prior convictions, that he was a registered sex offender, and that he had not paid taxes since 1983. Thus, evidence from the transcript regarding Hartline’s other criminal activities would have been cumulative, and there is no reasonable probability that the transcript would have changed the jury’s verdict. Cf. Jones, 160 F.3d at 479. Therefore, the district court did not abuse its discretion in denying Ladoucer’s motion for a new trial based on an alleged Brady violation. D. Funds for Expert Witness Ladoucer argues that the district court should have provided funding for an expert witness to examine the videotape recording of the transaction at Hartline’s store to ensure that the recording had not been altered. We review a district court’s denial of funding for an expert witness for abuse of discretion. United States v. Bertling, 370 F.3d 818, 820 (8th Cir.2004). “The Criminal Justice Act Revision of 1986 permits a ‘financially unable’ defendant to request funding for ‘investigative, expert, or other services necessary for adequate representation.’ ” United States v. Ross, 210 F.3d 916, 921 (8th Cir.2000) (quoting 18 U.S.C. § 3006A(e)). Ladoucer bears the burden of demonstrating that the expert is necessary to an adequate defense and must show “a reasonable probability that the requested expert would aid in his defense and that denial of funding would result in an unfair trial.” See Ross, 210 F.3d at 921. “The decision to grant or deny funding for an expert witness ... is committed to the sound discretion of the district court and will not be reversed absent a showing of prejudice.” Mentzos, 462 F.3d at 840. Ladoucer offered no evidence supporting his" }, { "docid": "22889484", "title": "", "text": "great weight of the evidence presented at trial so as to be clearly wrong and unjust,” is necessary in this case to provide meaningful appellate review. In essence, Hernandez invites us to reweigh the evidence. Hernandez’s failure to so move in the district court bars our consideration of the issue on appeal. Cf. Dixon v. Montgomery Ward, 783 F.2d 55, 55 (6th Cir.1986). Even had he done so, our role on appeál would be to examine the evidence to determine whether the district court’s ruling was a clear and manifest abuse of discretion. See United States v. Lutz, 154 F.3d 581, 589 (6th Cir.1998). Plainly, it was not. Regardless, we will not review a judgment where the trial court had no chance to make such a determination. B. Motion to Correct the Record Hernandez also appeals the district court’s denial of his motion to correct the record pursuant to Federal Rule of Appellate Procedure 10(e). When a district court settles a dispute about what occurred in proceedings before it, the court’s determination is conclusive unless intentionally false or plainly unreasonable, see United States v. Zichettello, 208 F.3d 72, 93 (2nd Cir.2000); United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir.1993); United States v. Serrano, 870 F.2d 1, 12 (1st Cir.1989); United States v. Mori, 444 F.2d 240, 246 (5th Cir.1971), this because “[ultimately the [District] Court has direct knowledge of what the parties [stated in the] case and of what the Court’s own general procedures are.” United States v. Barrow, 118 F.3d 482, 487-488 (6th Cir.1997). In denying Hernandez’s Rule 10(e) motion, the district court agreed with the arguments put forth by the government in its response to the motion. The government asserted that the alleged offensive comment did not appear in the trial transcript; that counsel for Hernandez failed to support any contention that the statement might have been left out of the transcript with citation to the appropriate transcript section where the comment might have occurred; that Hernandez’s appellate counsel’s affidavit as to what his trial counsel said that the government attorney said was hearsay and thus" }, { "docid": "17452059", "title": "", "text": "her administrative remedies (either constructively or through an administrative appeal), the requester may only obtain judicial review of issues related to the initial, unexhausted request insofar as the agency elected to review those particular issues through an administrative appeal on the merits in connection with the subsequent, identical, exhausted request. The plaintiffs have failed to exhaust their administrative remedies with respect to the defendant’s withholding decisions. Consequently, the plaintiffs’ claims regarding (1) the propriety of the defendant’s invocation of FOIA Exemptions (b)(3), (b)(5), (b)(6), and (b)(7); and (2) the sufficiency of the resulting Vaughn indices, are DISMISSED for failure to state a claim. The Court also holds that the EOUSA’s search for subpoena records was inade quate, but that its search for “tapes and recordings,” “transcripts of recordings” and “documents reflecting an intent to tape” Ms. Toensing were adequate. Therefore, the defendant’s motion for summary judgment is GRANTED in part for sufficiently demonstrating that its search for “tapes and recordings,” “transcripts of recordings” and “documents reflecting an intent to tape” Ms. Toensing were adequate. The defendant’s motion for summary judgment is DENIED in part for failing to demonstrate that its search for subpoena records was adequate. Since the latter search may have been adequate, the partial denial is without prejudice, and for that same reason, the plaintiffs’ cross-motion for summary judgment is DENIED without prejudice. In light of the inadequate search for subpoena records, as described in the defendant’s submissions discussed above, the most efficient course would be to remand this matter to the agency to ensure that an adequate search is performed. See, e.g., People for the Ethical Treatment of Animals, Inc. v. Bureau of Indian Affairs, 800 F.Supp.2d 173, 178 n. 2 (D.D.C.2011) (“[I]n a FOIA case, even if defendant had failed in obtaining summary judgment because of an inadequate search, .... the usual remedy is for the Court to remand to the agency to expand its search or to provide more detailed declarations regarding the scope of the search.”). Therefore, the parties are directed to confer and jointly propose search and documentation procedures appropriate for this case." }, { "docid": "16418232", "title": "", "text": "result of the criminal proceedings. Hasie returned the documents at issue to the OCC, and the Texas state court stayed the civil litigation pending resolution of whether Hasie was entitled to obtain the SARs from the OCC. Meanwhile, Hasie submitted a written request for limited disclosure of documents, including the previously disclosed SARs, pursuant to the OCC’s Touhy regulations. The OCC denied Hasie’s request for the SARs, concluding that Hasie’s “showing of relevance is negated completely by the statutory safe harbor [31 U.S.C. § 5318(g)(3)] accorded a bank that files a SAR,” Hasie’s need for the requested information did not outweigh the public interest in maintaining its confidentiality, public policy considerations supported prohibiting disclosure in this case, and the OCC had not waived privileges attached to the SARs. Hasie sought review of the OCC’s decision in the district court. On the parties’ cross-motions for summary judgment, the district court granted the OCC’s motion. Hasie timely appealed. Hasie also moved this court to unseal the administrative record. II Judicial review of the OCC’s decisions is governed by the Administrative Procedure Act (APA). Under the APA, “the reviewing court [decides] all relevant questions of law.” Agency actions, findings, and conclusions, however, may be set aside only if they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The scope of review under this standard is narrow, and a court is not to substitute its judgment for that of the agency. “Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” We review the district court’s grant and denial of summary judgment de novo. III We first note that amendments to some of the regulations at issue became effective January 3, 2011, and as of that date, disclosure by the OCC of SARs or information that would reveal the existence of a SAR is addressed specifically in 12 C.F.R. § 21.11(k). None of these amendments were in effect when the events at issue transpired. Accordingly, all references in this opinion" }, { "docid": "22450163", "title": "", "text": "“functional equivalent,” such that his appeal of the September 17, 2008, judgment is untimely, leaving only the appeal of the Rule 60(b) denial properly before us. III. Appeal from the Denial of the First Rule 60(b) Motion A notice of appeal from the denial of a Rule 60(b) motion in a civil proceeding does not bring up the underlying judgment for review. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1203-04 (5th Cir. 1993). We review the denial of a Rule 60(b) motion for abuse of discretion. Thermacor Process, L.P. v. BASF Corp., 567 F.3d 736, 744 (5th Cir.2009). Bailey argued that the district court erred in concluding that his § 2254 application was time-barred without considering the transcript of a 2002 hearing that was only transcribed after the court’s ruling. Although styled as a Rule 60(b)(6) motion, Bailey’s motion is premised on “newly discovered evidence,” which is addressed by Rule 60(b)(2). We therefore consider his arguments under that rule. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863 n. 11, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (noting that clause (6) is mutually exclusive of clauses (1) through (5)). To obtain relief under Rule 60(b)(2), a movant must show that “with reasonable diligence” this evidence could not have been discovered sooner. Fed. R.Civ. P. 60(b)(2). Not only has Bailey not made this showing, but also he has tacitly admitted he could have provided this evidence sooner. In his brief to this court, Bailey states that he ordered the transcription after the magistrate judge issued the report and recommendation. He makes no attempt to show that he could not have obtained this transcription sooner if it were necessary to make his case before the district court. Accordingly, we conclude that the district court did not abuse its discretion in denying Bailey’s Rule 60(b)motion. IV. Conclusion For the foregoing reasons, we DISMISS for want of jurisdiction Bailey’s appeal from the September 17, 2008, order; we AFFIRM the November 17, 2008, order denying the Rule 60(b) motion. . The document contained the caption of the district court case and" }, { "docid": "5927151", "title": "", "text": "defense of truth of the statements published, the Journal sought to obtain from the Comptroller documents relating to the examination of Fairfield’s banks. On July 7, 1992, the Journal served a subpoena duces tecum on James Jones, an official in the Comptroller’s office in Houston. The Comptroller responded by a letter of July 17, 1992, informing the Journal that it should request documents through the agency’s administrative request procedure, pursuant to 12 C.F.R. § 4.19 (1995), rather than by state-court subpoena. After the exchange of several more letters, the Comptroller issued a letter decision on March 15, 1993, which released certain documents to the Journal but withheld others. The Comptroller stated that all of his documents regarding Fairfield’s banks were protected by the bank-examination privilege and informed the Journal that its letter decision was “final agency action” for purposes of the Administrative Procedure Act (APA), 5 U.S.C. § 704. Dissatisfied with the Comptroller’s limited document production, the Journal obtained from the Texas state court on June 7, 1993, an order to compel the production of the documents based on the Journal’s subpoena duces tecum. The Comptroller did not comply with the state court’s order and instead removed that part of the state-court action relating to the enforcement of the subpoena to the United States District Court for the Southern District of Texas. In federal district court, the Journal added claims under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the APA, 5 U.S.C. § 706. The district court granted the Comptroller’s motion to quash the subpoena because “it is clear that federal sovereign immunity precludes the state court from enforcing the subpoena.” Fairfield v. Houston Business Journal, Inc., Civ. No. H-93-1794, 1993 WL 742740 (S.D.Tex. Sept. 8, 1993). The court denied the motion to compel under FOIA because the Journal had failed to file a FOIA request. Finally, the court denied the motion to compel under the APA because “the [Comptroller’s] decision was not arbitrary and capricious or contrary to law.” Id. Reviewing the factors for the bank-examination privilege that we set forth in In re Subpoena" }, { "docid": "12612720", "title": "", "text": "in its entirety, supports no conclusion except that Silver was incapable of returning to work between December 15, 2000, and March 14, 2001, we must reverse the judgment of the district court. IV. CONCLUSION We find that Silver met his burden of proving his disability under the terms of the Policy issued by UNUM, and we hold that the district court’s contrary conclusion was clearly erroneous. Accordingly, we REVERSE and REMAND for the district court to calculate an award of benefits consistent with this opinion. . Silver argues that UNUM's letter denying benefits did not adequately explain the company’s decision to reject his claim and thereby deprived him of the ability to challenge that decision effectively. We are satisfied that the denial letter met the requirements set forth in the applicable federal regulations. See 29 C.F.R. § 2560.503-1 (g). The letter explained why Silver's claim was denied and pointed to the specific provision in the Policy on which the decision was based, i.e. the clause relating to the elimination period. Further, UNUM advised Silver why UNUM considered the claim inadequate, including the basis for its judgment that a restriction on working was \"medically unnecessary,” and it informed Silver about how to obtain a review of UNUM’s decision. We hold that UNUM’s denial letter complied strictly with applicable federal regulations and that it satisfied the \"common sense\" requirement that plan administrators engage in \"meaningful dialogue” with claimants about the reasons for denying their claims. Booton v. Lockheed Med. Benefit Plan, 110 F.3d 1461, 1463 (9th Cir.1997). . In general, a district court may consider only evidence within the administrative record at the time of the administrator’s decision. See Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469, 1472 (9th Cir.1993). This restriction is based on the principle that federal district courts should not function \"as substitute plan administrators,” and that expanding the record on appeal \"would frustrate the goal of prompt resolution of claims by the fiduciary under the ERISA scheme.” Id. (quoting Perry v. Simplicity Eng’g, 900 F.2d 963, 967 (6th Cir.1990)). Yet there is an exception to this general" }, { "docid": "22932171", "title": "", "text": "the policies served by the attorney-client” and work-product privileges. Upjohn, 449 U.S. at 396, 101 S.Ct. 677. Thus, on remand the government must explain to the district court why it cannot obtain the information it seeks through other witnesses. Conclusion We vacate the order of the district court and remand so that it may consider further, in light of this opinion, the issues of waiver of Doe Corp.’s attorney-client and work-product privileges. . The appeal concerns proceedings currently before a grand jury. At present, no indictments have been issued. Proceedings before the district court and before this court were held in a closed courtroom, and the record and briefs are under seal. In order to preserve the anonymity of the parties, we will use pseudonyms and will reveal only those facts necessary to our decision. . Although we are told that Witness’s testimony fills more than 150 pages of transcript, the record contains only seven pages of his heavily redacted testimony. The record indicates that the government offered.to make the complete and unredacted transcript available to the district court for in camera review, but that such a copy was never requested by the court. We have therefore confined ourselves to the portions of the transcript actually provided to the court below. . We have jurisdiction under 28 U.S.C. § 1291. See In re Katz, 623 F.2d 122, 124-25 (2d Cir.1980) (holder of asserted privilege may appeal when subpoena is directed at a third party because of the risk that the third party will surrender the privilege rather than risk a contempt citation). . This type of waiver is also known as subject-matter waiver. As explained in Wigmore, \"[t]he client's offer of his own or the attorney’s testimony as to a specific communication to the attorney is a waiver as to all other communications to the attorney on the same matter.'1 8 J. Wigmore, Evidence § 2327, at 638 (McNaughton ed., 1961). . For instance, in In re Sealed Case, 877 F.2d 976, 978, 982 (D.C.Cir.1989), the court appeared to accept the position of the government and of defendant that work-product" }, { "docid": "21585782", "title": "", "text": "a written explanation for the district court’s denial of costs would have been helpful, the court’s failure to provide such an explanation did not require reversal because the court “was clearly within its discretion.” In Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1282 (7th Cir.1983), although we were unable to review the decision regarding reasonableness of the costs because of the district court’s lack of findings, after examining all the facts presented, we determined that the requested costs were reasonable and necessary. Similarly, in this case, in view of the abbreviated findings by the trial judge, the relatively modest difference between the sums involved, and the interests of judicial economy, we have chosen to conduct an examination of whether the district court’s denial of costs was an abuse of discretion rather than remand for a futher explanation. The analysis we are required to undertake when a district court advances such a limited basis for its denial of costs is clearly one better suited for the trial judge, given his or her first-hand familiarity with the facts of the case. Accordingly, we again strongly request district courts to specify the costs which are being disallowed in greater detail than was offered here, and to provide factual findings to support those disallowances which are based on a finding of unreasonableness or a lack of necessity to the litigation. After reviewing the district court record in detail, we affirm the district judge’s partial denial of costs. The district court found unnecessary the expenses associated with obtaining a transcript of the trial testimony. We do not believe the district court abused its discretion in making that determination. Although such transcripts need not actually be used at trial to be considered “reasonably necessary for use in the case,” Sangamo Constr. Co., 657 F.2d at 867, the court could properly deny such costs when Stone’s only use of the three-day trial transcription was to verify witness credibility. The costs Stone requests for the deposition expenses of witness Antonio Vianna consist of $50.00 for renting a conference room for taking his deposition by telephone," }, { "docid": "22732482", "title": "", "text": "Prisons, 591 F.2d 966, 968 (D.C.Cir.1979), and published reports of administrative bodies, see Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986). WCI asserts that the written exchange between it and the PBGC is a public record because the public may obtain access to it through a Freedom of Information Act (“FOIA”) request. See 5 U.S.C. § 552 (1988); 29 C.F.R. §§ 2603.1-2603.55 (1992). In the cases cited above, the public had unqualified access to all of the documents at issue. In contrast, potential obstacles exist when one seeks to inspect or copy an unpublished PBGC record. First, one must submit a request to the Disclosure Officer describing the information sought. See 29 C.F.R. §§ 2603.32-26.03.33. The PBGC may deny the request if it believes the information is not disclosable. See id. §§ 2603.37-2603.38. Many categories of information may not be disseminated. See, e.g., id. § 2603.18 (trade secrets and confidential information); id. § 2603.17 (PBGC internal rules); id. § 2603.19 (inter-agency and intra-agency communications); id. § 2603.21 (information compiled for law enforcement purposes). Finally, an applicant may appeal a denial. See id. § 2603.39. Because no FOIA request was made, we do not know if the PBGC would classify these documents as confidential or disclosable. We hold that a document is not a public record for purposes -of a motion to dismiss solely because it might be subject to disclosure under FOIA. We therefore will not consider the correspondence between WCI and the PBGC for purposes of this motion to dismiss. Having decided that we may consider only the purchase and sale agreement in addition' to the complaint, we now review the sufficiency of each count of the PBGC’s amended complaint. A district court’s order dismissing a complaint is subject to plenary review. See Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F.2d 869, 871 (3d Cir.1992). We may affirm the dismissal only if it appears certain the plaintiff can prove no set of facts that would entitle it to relief. Id. A. SECTION 1369 Counts IV and V of the PBGC’s amended complaint allege that" }, { "docid": "23314683", "title": "", "text": "questioned does not speak English. The regulations clearly allow the presentation of witness testimony, see 8 C.F.R. § 210.3(b)(3), (c). Appellants acknowledge that the general rule is that SAW applicants may bring witnesses to testify on their behalf. Because appellants’ procedures already contemplate what these provisions of the injunction require, it is unnecessary for us to consider the third Mathews factor. Paragraph (8) of the injunction directs LO interviewers to “particularize the evidence offered, testimony taken, credibili ty determinations and any of the relevant information on the form 1-696.” Appellants argue that this requirement constitutes an additional procedure which would entail significant administrative and financial burdens. Without any record of what transpired at the interview, however, the review provided for in IRCA is meaningless. “Meaningful review requires that the reviewing court should review.” Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966) (emphasis added). Due process thus requires that the interviewer set forth the factual basis for his recommendation with sufficient specificity to permit the RPF (and eventually the Administrative Appeals Unit and court of appeals) to make a decision regarding the recommendation. See, e.g., Jang Man Cho v. Immigration & Naturalization Service, 669 F.2d 936, 940 n. 6 (4th Cir.1982) (reasons for finding witness unbelievable should be fully stated as a prerequisite for appellate review). For the reasons set forth above, we conclude that the district court did not abuse its discretion in granting plaintiffs’ motion for preliminary injunction. Accordingly, the judgment of the district court is AFFIRMED. . Appellants, who were defendants below, do not challenge the propriety of the class certification. . When the LO, the RPF or the AAU denies a SAW application the adjudicator must give the applicant written notice setting forth the reasons for denial. 8 C.F.R. § 103.3(a)(2). In the case of denial by the LO or the RPF the notice must inform the applicant of the availability of review and procedures for appeal. Id. . The regulations provide that a complete application will be determined to be nonfrivolous at the time the applicant appears for" }, { "docid": "14639312", "title": "", "text": "obtain the requested information because “[s]uch records, if they exist, are exempt from disclosure pursuant to Exemptions (b)(6) and/or (b)(7)(C) of the FOIA.” JA 41. On February 8, 2000 the OIP (apparently unaware of the FBI’s January 7, 2000 denial) responded to Hidalgo’s December 29, 1999 appeal, stating: “Although the [FOIA] authorizes you to treat the failure of the FBI to act on your request within the specified time limit as a denial thereof, [the OIP] ... cannot act until there has been an initial determination by the [FBI].” JA 43. On April 3, 2000 Hidalgo filed an action in the district court challenging the FBI’s January 7, 2000 denial of his request. See JA 6, ¶¶ 6, 8-9. The district court granted summary judgment on March 16, 2001, on the ground that FOIA Exemption 6 precluded disclosure of the information sought. The court did not reach the government’s alternative ground that the information is protected under FOIA Exemption 7(C) and expressly rejected the government’s contention that the action was barred by Hidalgo’s failure to exhaust his administrative remedies because he did not appeal the FBI’s denial to the OIP. We review the district court’s summary judgment de novo. Nation Magazine v. United States Customs Serv., 71 F.3d 885, 889 (D.C.Cir.1995) (“We review de novo a district court’s grant of summary judgment in favor of an agency which claims to have complied with FOIA.”). Under this standard we conclude the district court incorrectly decided the. threshold issue of exhaustion. Hidalgo’s FOIA cause of action should have been dismissed because he failed to exhaust his administrative remedies, including appeal of the FBI’s denial to the OIP. II. “Exhaustion of administrative remedies is generally required before filing suit in federal court so that the agency has an opportunity to exercise its discretion and expertise on the matter and to make a factual record to support its decision.” Oglesby v. United States Dep’t of the Army, 920 F.2d 57, 61 (D.C.Cir.1990) (citing McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969)). It is true, as Amicus" }, { "docid": "21206099", "title": "", "text": "client who objects to a subpoena issued to his or her attorney. In those cases, the party holding the privilege has no opportunity to be held in contempt because it is not the subpoenaed party. The courts therefore have generally considered district court orders denying such motions to be final decisions for purposes of appellate jurisdiction. See, e.g., Perlman v. United States, 247 U.S. 7, 9-10, 12-13, 38 S.Ct. 417, 62 L.Ed. 950 (1918); In re Sealed Case, 107 F.3d 46, 48 n. 1 (D.C.Cir.1997); Impounded, 277 F.3d 407, 410-11 & n. 3 (3d Cir.2002); In re Grand Jury Proceedings (Manges), 745 F.2d 1250, 1251 & n. 2 (9th Cir.1984); see also 2 SARA Sun Beale & William C. Bryson, Grand Jury Law and PRACTICE §§ 9:39, 11:18 ¶3 & n. 4 (2d ed.2005). The same rationale applies here because the requesting party may have no opportunity to be held in contempt in order to obtain appellate review. In sum, we hold that the district court’s denials of the employees’ disclosure motions constitute “final decisions” over which this court has jurisdiction under 28 U.S.C. § 1291. B. The Government alternatively contends that this court lacks jurisdiction over the employees’ appeals because the cases are moot. According to the Government, the employees requested disclosure of their transcripts in order to prepare for subsequent grand jury appearances. Because both employees went ahead and testified again before the grand jury, the Government argues that the employees no longer need the transcripts of their prior testimony. This argument is closely related to the Government’s initial jurisdictional contention. Under the Government’s theory, the witness seeking to appeal the denial of a disclosure motion must refuse to comply with an outstanding subpoena and be held in contempt; and if the witness testifies instead of defying the subpoena, the disclosure issue becomes moot. The primary problem for the mootness version of the Government’s eontempt-as-prerequisite-for-appeal argument is that a witness has an interest in reviewing his or her grand jury transcript even when the witness has finished testifying. Here, for example, the employees have expressed concern that their" } ]

[ { "docid": "11338151", "title": "", "text": "impairment prevented her from performing her past relevant work as an advertising media director. See id. at 33. The evidence in the Administrative Record used by the ALJ to reach her finding included Rohrberg’s testimony from the hearing, her treating physician’s notes and letters written in the context of Rohrberg’s application for benefits, and the opinions of a Vocational Expert (“VE”) based on the ALJ’s hypothetical residual functioning capacity (“RFC”). See id. at 22-38. The ALJ then found that Rohrberg possessed work skills which could be applied to other work existing in significant numbers in the national economy and that she was, therefore, not disabled. See id. at 33-34. The ALJ’s decision became final when the Appeals Council denied the plaintiffs request for review on October 10, 1997. See A.R. at 6-7. . III. STANDARD OF REVIEW The Court may not disturb the Commissioner’s decision if it is grounded in sub stantial evidence. See 42 U.S.C. § 405(g). The Supreme Court of the United States has defined substantial evidence as “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Even if the record could support multiple conclusions, the Court must uphold the Commissioner “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [his] conclusion.” Irlanda Ortiz v. Secretary of Health and Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981)); see also Richardson, 402 U.S. at 401, 91 S.Ct. 1420. Even if the record arguably could justify a different result, the Court must affirm the Commissioner’s resolution so long as substantial evidence supports it. Rodriguez Pagan v. Secretary of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.1987), cert. denied, 484 U.S. 1012, 108 S.Ct. 713, 98 L.Ed.2d 663 (1988). In determining the substantiality of the evidence, the Court will “examine the record as a whole, including whatever in the record fairly detracts from the weight of the Secretary’s decision.” Glenn v. Shalala, 21" } ]

[ { "docid": "1066020", "title": "", "text": "assertions, there is substantial evidence to support the Commissioner’s denial of benefits and that the Commissioner committed no error of law in reaching its decision to deny benefits. I. FACTUAL AND PROCEDURAL BACKGROUND Raphaela Lozada was born on April 2, 1979. R. at 16. At the time of the administrative hearing, Lozada was twenty-two (22) years old. Id. She has a high school equivalent education but has no past relevant work experience. R. at 16,18. Lozada filed for benefits in September 13, 2001 alleging disability since August 1, 2000, as a result of anxiety, memory loss, inability to concentrate, depression, and fear of being around people. R. at 80. Her claim was denied initially and a request for a hearing was timely filed. R. at II. After a hearing, Administrative Law Judge Reana L. Sloniger denied Lozada’s claim for SSI benefits on February 2, 2002. R. at 19. The Appeals Council subsequently denied Ms. Lozada’s request for review, R. at 4, and the Commissioner adopted the Appeals Council’s decision, making the ALJ’s decision the final decision of the Commissioner. Plaintiff then filed the instant action in federal court seeking judicial review of the Commissioner’s decision. II. DISCUSSION A. “Substantial Evidence” Standard The role of the court is to determine whether the Commissioner’s findings of fact are supported by “substantial evidence.” 42 U.S.C. § 405(g); Jesurum v. Sec’y of U.S. Dep’t of Health & Human Services, 48 F.3d 114, 117 (3d Cir.1995) (citing Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir.1988)). Substantial evidence is defined as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Jesurum, 48 F.3d at 117 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “It is less than a preponderance of the evidence, but more than a mere scintilla.” Id. (citing Richardson, 402 U.S. at 401, 91 S.Ct. 1420). The search for substantial evidence “is not merely a quantitative exercise.” Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983). Rather the “administrative decision should be accompanied by a clear and satisfactory" }, { "docid": "4938336", "title": "", "text": "any kind of tranquilizer or any type of relief in that area? A: No. (R. at 27.) The ALJ did not question Zorilla about her crying spells, inability to concentrate for extended periods of time, feelings of isolation or withdrawal, a belief that she is being punished, or any of the other considerations reported by Dr. Agaze in his report about Zorilla’s mental health. The ALJ denied Zorilla’s application for benefits. (R. at 10-14.) The ALJ found that Zorilla had a “severe impairment” but that she retained the capacity to perform light work, and that, in spite of her impairment, there are “a significant number of jobs in the economy that [Zorilla] is capable of performing of a light nature.” (R. at 12.) Based on his finding that Zorilla retained a residual functional capacity to perform light work, in combination with her age, education, and employment history, the ALJ determined that Zorilla was not disabled. (R. at 12-13.) III. A court may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. 42 U.S.C. § 405(g) (1991) (made applicable to SSI cases by 42 U.S.C. § 1383(c)(3) (1992)). Substantial evidence is “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir.1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). A. Under the Act, a person is considered disabled when that person is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The impairment must be of a severity that the person: is not only unable to do his previous work but cannot," }, { "docid": "21815641", "title": "", "text": "course of treatment ... [and Garcia’s] activities of daily living.” Id. The ALJ also awarded “[s]ome weight” to the opinion of Dr. Michael McNett, one of Garcia’s treating physicians, who concluded that Garcia had no functional limitations, because the conclusion was “supported by the record,” and Garcia’s “lack of treatment for his alleged physical impairments.” R. 30-31. The ALJ also reviewed the third party function report of Ms. Norma Tejada, but granted it no more weight than the claimant’s own testimony. R. 31. The ALJ determined that Garcia was capable of performing his past relevant work as a cleaner, both “as actually and generally performed,” and thus that Garcia had not been under a disability since April 17, 2010. R. 31-32. II. APPLICABLE LAW A court reviewing a final decision by the Commissioner “is limited to determining whether the [Commissioner’s] conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.2013) (per curiam) (citation and quotation marks omitted); accord Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ....”); id. § 1383(c)(3) (“The final determination of the Commissioner of Social Security ... shall be subject to judicial review as provided in section 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. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); accord Burgess, 537 F.3d at 127-28; Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir.2010)" }, { "docid": "20061218", "title": "", "text": "pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff submitted his opposition to the motion on May 26, 2009, requesting that the ALJ’s decision be reversed or remanded for further review. This matter is fully submitted. II. Discussion A. Legal Standard 1. Standard of Review A district court may set aside a determination by an ALJ only if the decision is based upon legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). The Supreme Court has defined “substantial evidence” in Social Security cases as “more than a mere scintilla” and that which “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”) (internal quotations and citations omitted). Furthermore, “it is up to the agency, and not th[e] court, to weigh the conflicting evidence in the record.” Clark v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d Cir.1998). If the court finds that there is substantial evidence to support the Commissioner’s determination, the decision must be upheld, even if there is substantial evidence for the plaintiffs position. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir.1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir.1991). “Where an administrative decision rests on adequate findings sustained by evidence having rational probative force, the court should not substitute its judgment for that of the Commissioner.” Yancey, 145 F.3d at 111; see also Jones, 949 F.2d at 59 (quoting Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984)). 2. The Disability Determination A claimant is entitled to disability benefits under the Act if the claimant is unable “to engage in any substantial gainful activity by reason" }, { "docid": "8788018", "title": "", "text": "MEMORANDUM-DECISION AND ORDER HURD, District Judge. This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security Act, as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the Commissioner of Social Security denying the plaintiffs claim for Social Security Disability benefits. The parties have filed their briefs, including the Administrative Record on Appeal, and the matter has been submitted for decision without oral argument. I. PROCEDURAL HISTORY Plaintiff applied for Social Security Disability Insurance benefits on February 5, 1996, alleging that he has been disabled since January 26, 1995 due to bilateral carpal tunnel syndrome (“CTS”), back, neck, and arm problems, a right lung impairment, and depression. His application was denied initially and on reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on January 21, 1998. The ALJ issued an unfavorable decision on April 13, 1998. The Appeals Council denied review on January 20, 1999, making the ALJ’s decision the final decision of the Commissioner. Plaintiff then commenced the instant action on March 11,1999. II. FACTS The facts stated in plaintiffs brief are adopted with any exceptions as noted. III. CONTENTIONS Plaintiff contends that the ALJ’s decision should be reversed and/or remanded because the ALJ: 1. Erred in determining plaintiffs educational level; 2. Improperly rejected plaintiffs subjective complaints of pain; 3. Erred in his assessment of plaintiffs psychological impairment; and 4. Failed to consider the combined effects of plaintiffs impairments. IV. DISCUSSION A. Standard of Review A court’s review of the Secretary’s final decision is limited to determining whether there is substantial evidence in the record to support such decision. Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir.1991). Substantial evidence is “such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Id. (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). It must be “more than a mere scintilla” of evidence scattered throughout the administrative record. Richardson, 402 U.S. at 401, 91 S.Ct. 1420. “To determine on appeal whether an ALJ’s findings are supported" }, { "docid": "3107464", "title": "", "text": "skilled sedentary jobs in the economy. Claimant, this time through counsel, sought review by the Appeals Council. The Appeals Council vacated the ALJ’s decision and remanded the case, directing the ALJ to obtain additional medical evidence regarding claimant’s depression, and if necessary, to seek additional vocational expert testimony. A second hearing was held on August 14, 1991. On October 25,1991, the ALJ issued a decision denying benefits. The ALJ found that claimant was insured for disability benefits through at least December 31, 1992, and that he had engaged in substantial gainful activity during the period from May 24, 1989 to December 23,1989, since his onset date of March 25, 1988. The ALJ also found that claimant’s impairments, which consisted of multiple kidney stones, multiple joint arthritis, and a history of depression, did not meet or equal a condition in the listings; and that his subjective complaints of disabling pain were not supported by objective medical evidence, did not meet the factors set forth in Social Security Ruling (“SSR”) 88-13 and were not credible. Finally, the ALJ determined that Stanley had the residual functional capacity to perform sedentary work activities that were of a relatively low stress nature, and although he could not perform his past relevant work as an anodizer, he had the capacity to perform skilled jobs such as a production clerk, floor inspector, and assembler. The Appeals Council denied claimant’s request for review, and the ALJ’s decision became the final decision of the Secretary. Claimant filed a complaint in federal court pursuant to 42 U.S.C. § 405(g). Per stipulation of the parties, the magistrate judge made a final determination upholding the Secretary’s decision. II. This court’s review of the Secretary’s denial of Stanley’s claim is strictly limited by 42 U.S.C. § 405(g). Where the record as a whole contains substantial evidence to support the Secretary’s determinations, the Secretary’s decision must be affirmed. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id." }, { "docid": "4237811", "title": "", "text": "to carry out detailed and/or complex work instructions or tasks; and she could not interact with the general public more than occasionally. (R. 30-31.) Thus, the ALJ concluded that Plaintiff has the RFC to perform a limited range of sedentary work, subject to the above specified limitations; however, Plaintiff is unable to perform her past relevant work. (R. 31.) The ALJ determined that in view of Plaintiffs vocational characteristics and RFC, the Medical-Vocational Guidelines were not applicable. 20 C.F.R. Pt. 404, Subpt. P, App. 2. (R. 31.) However, using Rule 201.21 or 202.21 as a framework, as supplemented by the VE’s testimony, the ALJ concluded that Plaintiff could perform a significant number of jobs in the national economy. (R. 31) Plaintiff, therefore, is capable of performing packager and inspection jobs. (R. 31.) The ALJ further found that Plaintiffs allegations of disabling symptoms and limitations were not fully credible. (R. 30.) Accordingly, the ALJ found that Plaintiff was not disabled under the terms of the Act. (R. 32.) LEGAL STANDARDS I. STANDARD OF REVIEW Judicial review of the Commissioner’s final decision is limited. The Act at 42 U.S.C. § 405(g) establishes that the Commissioner’s findings as to any fact are conclusive if they are supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir.1997). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Brewer, 103 F.3d at 1390. The court may not reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390. Conclusions of law, however, are not entitled to deference. Thus, if the Commissioner commits an error of law, reversal is required without regard to the volume of evidence in support of the factual findings. See Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997). II. STATUTORY AND REGULATORY FRAMEWORK To receive disability benefits, SSI and DIB claimants must be “disabled” as defined by the Act. See 42 U.S.C." }, { "docid": "22945468", "title": "", "text": "here is not in all respects a model of clarity,” R.29 at 16, the district court concluded that substantial evidence ultimately supported the conclusion that Darius had failed to meet his burden. According to the district court, the ALJ had concluded that, although Darius suffered from moderate communicative and behavioral problems, he lacked similar limitations in other areas, including his cognitive, motor and social functioning. In the district court’s estimation, these findings, even when coupled with Darius’ scores on intelligence tests, precluded the claimant from satisfying the listing for mental retardation. II DISCUSSION A. We must sustain the findings of the ALJ so long as they are supported by substantial evidence. See 42 U.S.C. § 405(g); Schoenfeld v. Apfel, 237 F.3d 788, 792 (7th Cir.2001). “[A] mere scintilla of proof will not suffice to uphold the [ALJ’s] findings!; however,] the standard of substantial evidence requires no more than ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.1995) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). In conducting our inquiry, we may consider the entire administrative record, but may not substitute our judgment for that of the ALJ by reconsidering the facts, reweighing the evidence or resolving factual disputes. See Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir.1999). Although great deference is accorded to the ALJ’s determination, see Diaz, 55 F.3d at 305, “we must do more than merely rubber stamp the [ALJ’s] decision[].” Ehrhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 538 (7th Cir.1992). B. 1. Before turning to the parties’ contentions, we briefly set forth the legal framework governing Darius’ application for SSI disability benefits. At the time of the ALJ’s determination, a child was considered disabled within the meaning of Title XVI of the Social Security Act, and thus entitled to benefits, if he suffered from “any medically determinable physical or mental impairment of comparable severity” to an impairment that would disable an adult. 42 U.S.C. § 1382e(a)(3)(A) (1994); 20 C.F.R. §" }, { "docid": "20796545", "title": "", "text": "SUMMARY ORDER Plaintiff-Appellant Mary Jane Parker-Grose appeals from a judgment of the United States District Court for the District of Vermont (Conroy, M.J.) entered on November 16, 2010, affirming the March 4, 2009 decision of the Commissioner of Social Security (“Commissioner”) denying plaintiffs application for Social Security Disability benefits. We assume the parties’ familiarity with the underlying facts and procedural history of this case. “In reviewing the denial of [Social Security] benefits by the [Commissioner], ‘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) (alterations in original) (quoting Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir.1998)). “It is not our function to determine de novo whether [a plaintiff] is disabled.... ” Pratts v. Cha- ter, 94 F.3d 34, 37 (2d Cir.1996). Instead, “[w]e set aside” an Administrative Law Judge’s (“ALJ”) “decision only where it is based upon legal error or is not supported by substantial evidence.” Rosa, 168 F.3d at 77 (alterations in original) (quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998)) (internal quotation marks omitted). 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.” Pratts, 94 F.3d at 37 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)) (internal quotation marks omitted). Parker-Grose’s case must be remanded for further administrative proceedings, because the ALJ’s finding that Parker-Grose’s “medically determinable mental impairment of depression ... [is] nonsevere,” Admin. R. 13, is not supported by substantial evidence and the Commissioner failed to account for any functional limitations associated with Parker-Grose’s depression when determining her residual functional capacity (“RFC”). To be “disabled” within the meaning of the Social Security Act, a claimant must have an impairment or combination of impairments that are “severe.” 20 C.F.R. § 404.1520(a)(4)(h), (c). An impairment is severe if it “significantly limits the claimant’s ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The “severity regulation,” however, “is valid only if applied to" }, { "docid": "7191464", "title": "", "text": "MEMORANDUM AND ORDER SAFFELS, District Judge. This matter is before the court on plaintiffs Complaint (Doc. 1), filed June 11, 2001, appealing the Social Security Commissioner’s denial of his application for disability benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. For the following reasons, defendant’s decision is reversed and the case is remanded for further proceedings. I. PROCEDURAL HISTORY Plaintiff filed an application for disability benefits on August 7, 1998, alleging his disability began on November 9, 1994. (R. 76-78). The application received consideration but was denied on December 8, 1998. (R. 62-63). Plaintiff appealed for recon sideration on January 22, 1999, yet, once again, on February 28, 1999, plaintiffs application was denied. (R. 64, 69-70). On June 4, 1999, a hearing was held before Administrative Law Judge Richard J. Kallsnick (“ALJ”). On August 11, 1999, the ALJ rendered a decision unfavorable to plaintiff. (R. 12-29). Plaintiff requested review by the Appeals Council, and on May 4, 2001, the Appeals Council declined plaintiffs request for review. (R. 5-6). Plaintiff brings the instant action seeking a reversal of defendant’s decision. II. STANDARD OF REVIEW The court’s standard of review is set forth in 42 U.S.C. § 405(g), which provides that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive .... ” Substantial evidence is more than a scintilla and is that evidence that a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). The court will also determine whether defendant applied the correct legal standards. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994). During its review, however, the court will not reweigh the evidence or substitute its judgment for defendant’s. See Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir.1994). On the other hand, the court will not merely accept defendant’s findings. See Claassen v. Heckler, 600 F.Supp. 1507, 1509 (D.Kan.1985). Any new evidence not considered by the ALJ but submitted to the Appeals Council" }, { "docid": "20514224", "title": "", "text": "MEMORANDUM AND ORDER JOHN J. McCONNELL, JR., District Judge. This matter is before the Court for review of the Administrative Law Judge’s (“ALJ’s”) decision denying an application for supplemental security income (“SSI”) submitted by Kathryn L. Hall. Ms. Hall filed her SSI application on March 9, 2009, claiming a disability onset date of January 17, 1976. Trans. 20. Ms. Hall alleges to suffer from cerebral palsy, depressive disorder, anxiety disorder, a personality disorder, obesity, and asthma. Id. at 22. Her SSI application was initially denied and again denied after reconsideration. Id. at 75, 81. Ms. Hall requested a hearing before an ALJ and that hearing took place on November 9, 2011. Id. at 38-70; 84. Ms. Hall, represented by counsel, appeared and testified, as did a vocational expert. Id. at 38-70. Subsequently, the ALJ determined that Ms. Hall was not disabled during the relevant time period. Id. at 31-32. Ms. Hall appealed to the Appeals Council, but her request was denied. Id. at 1-6; 15-16. Ms. Hall then appealed to this Court. (ECF No. 1.) Ms. Hall requests relief under sentence four of 42 U.S.C. § 405(g), seeking to reverse and remand the ALJ’s decision. (ECF No. 5.) Ms. Hall contends that she was not “provided a fair non-adversarial hearing” and the ALJ’s decision contains errors of law and its factual findings are not supported by substantial evidence in the record. (ECF No. 10 at 1; ECF No. 5 at 1.) Carolyn W. Colvin, Acting Commissioner of Social Security (the “Commissioner”), has moved for an affirmance of the ALJ’s decision “because substantial evidence supports the Commissioner’s finding that [Ms. Hall] was not disabled during the relevant time period.” (ECF No. 8 at 1.) I. STANDARD OF REVIEW “Judicial review of Social Security administrative determinations is authorized by 42 U.S.C. § 405(g) (1994).” Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir.2001). “The ALJ’s findings of fact are conclusive when supported by substantial evidence, 42 U.S.C. § 405(g), but are not conclusive when derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Nguyen v. Chater, 172 F.3d" }, { "docid": "11234320", "title": "", "text": "and must be reversed. She argues that, in determining her residual functional capacity, the Administrative Law Judge (“ALJ”) gave greater weight to the advisory opinion of a non-examining doctor in concluding that Plaintiff had the capacity for “light work,” rather than the treating physician’s conclusion that Plaintiff could do only “sedentary work.” In response, the Commissioner argues that the ALJ’s decision was supported by substantial evidence. The Commissioner claims that the ALJ considered the treating physician’s opinions but properly determined that they were not supported by objective medical evidence. The parties’ motions were referred to the court for a report and recommendation pursuant to Rule 3 of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts. See 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the court recommends that the Commissioner’s motion be allowed and that Plaintiffs motion be denied. I. STANDARD OF REVIEW A court may not disturb the Commissioner’s decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir.1981). The Supreme Court has defined substantial evidence as “more than a mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Thus, even if the record could support multiple conclusions, a court must uphold the Commissioner “if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Irlanda Ortiz v. Secretary of Health & Human Servs., 955 F.2d 765, 769 (1st Cir.1991) (quoting Rodriguez, 647 F.2d at 222). Accordingly, a court must affirm the Commissioner’s decision so long as it is supported by substantial evidence, even if the record could arguably justify a different result. See Rodriguez Pagan v. Secretary of Health & Human" }, { "docid": "16390991", "title": "", "text": "and lifting no more than ten pounds, the record reflects disagreement among the doctors about Hagans’s abilities. A vocational expert testified that there were jobs available that someone with Hagans’s infirmities could perform, such as ticket seller, assembler of small products, and garment sorter. At the time of the ALJ hearing, Hagans represented that he spent his time watching television, helping at church, napping, and visiting a nearby park. He claims he requires assistance shaving and showering. As of September 1, 2004, he had not engaged in any substantial gainful activity following his heart surgery. On February 26, 2009, the ALJ issued a decision finding that Hagans’s disability had ceased on September 1, 2004. Specifically, the ALJ found that Hagans’s condition had improved and he was capable of engaging in substantial gainful activity, although he could not perform his past relevant work. On May 21, 2009, the Appeals Council denied review, which rendered the ALJ’s opinion the final decision of the SSA. Hagans then filed the instant action. On April 8, 2011, the District Judge affirmed the SSA’s decision that Hagans’s eligibility for disability benefits ended on September 1, 2004. Hagans has continued to receive benefits pending the outcome of this appeal. Hagans also filed a new application for disability insurance benefits on January 20, 2010. II. The District Court had jurisdiction to review the final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over all legal issues. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir.1999). We review an ALJ’s decision under the same standard of review as the District Court, to determine whether there is substantial evidence on the record to support the ALJ’s decision. See 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence has been defined as “more than a mere scintilla”; it means “such relevant evidence as a reasonable mind might accept as adequate.” Plummer, 186 F.3d at 427 (quotations marks omitted). “Where the ALJ’s" }, { "docid": "9328017", "title": "", "text": "forth a number of additional arguments which require full development of the facts in each of the three cases. Hence, these arguments are addressed separately below. Wilson v. Califano In 1971 Ethel G. Wilson filed an application for child insurance benefits for her son, plaintiff Rodney Wilson, on the wage record of Clifton Berry, Jr., a fully insured individual for social security purposes. (Wilson R. 27-30, 38). Her initial claim was denied as was her request for reconsideration. (Wilson R. 33-36). On October 17, 1972 she filed a request for a hearing before an Administrative Law Judge (ALJ) which was held on February 26, 1973. (Wilson R. 13-14). On March 19, 1973, the ALJ rendered his decision, finding, inter alia, that Ms. Wilson had not satisfied her burden of establishing Clifton Berry’s paternity of her son. (Wilson R. 9). Refusal by the Appeal Council to alter this decision (Wilson R. 3) rendered it the final decision of the Secretary. On November 21,1973, plaintiff filed the present action in this court. The function of this court on review is to determine whether, based on the entire record, the agency’s decision is supported by substantial evidence. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); 42 U.S.C. § 405(g). Substantial evidence means, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is more than a scintilla but less than a preponderance and must be based on the record as a whole. Blalock v. Richardson, supra at 776. It is also a function of the court to determine whether the Secretary applied the correct legal standards, Knox v. Finch, 427 F.2d 919, 920 (5th Cir. 1970), and whether his conclusions have a reasonable basis in law. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). Preliminarily, the court notes that plaintiff’s mother proceeded below without benefit of counsel. As a consequence, an extremely meager record was developed. For example, the transcript of the entire hearing before the ALJ is" }, { "docid": "14595017", "title": "", "text": "on reconsideration. Moore requested a hearing, which was held on May 21, 1982. The Administrative Law Judge (“ALJ”) affirmed the denial of benefits on the ground that Moore’s disability, which was found to have begun on April 13, 1982, had not lasted and could not be expected to last at least twelve months. See 42 U.S.C. § 423(d). On January 25, 1983, the Appeals Council denied Moore’s request for review. Moore then commenced this action on June 20, 1983, seeking review of the Secretary’s final determination. 42 U.S.C. §§ 405(g), 1383(c)(3). In a Memorandum of Decision and Order dated October 3,1984, Judge Mishler found the Secretary’s determination not to have been supported by substantial evidence and concluded that Moore was disabled as of April 13, 1982. Accordingly, he reversed the ALJ’s decision and ordered the calculation and payment of benefits as of that date. Subsequently, Moore sought to amend that judgment, see Fed.R.Civ.P. 60(b), to provide for a finding of the onset of disability as of April 20, 1981, approximately one year earlier. By Memorandum of Decision and Order dated June 4, 1985, Judge Mishler denied that application. This appeal followed. II. DISCUSSION The governing legal standard is not disputed; the Secretary’s determination will be disturbed only if not supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence may be found whenever the record contains “such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion.” Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. at 1427. Bearing in mind that the burden of establishing disability rests with the claimant, Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir.1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980), we nonetheless agree with Judge Mishler that the Secretary’s finding of no disability was not supported by substantial evidence. We also find, however, that the onset of Moore’s disability is to be traced back to April of 1981, and not, as found by Judge Mishler,- April of 1982. Accordingly, we reverse. In" }, { "docid": "17884135", "title": "", "text": "open an envelope, write with a pen, shower, get a haircut, pull a t-shirt over his head, use utensils, use a phone, hold up a cup of coffee, pick up coins, and squeeze a tube of toothpaste. (Id. at 62, 66-68.) Plaintiff goes shopping for food with his mother (id. at 64; see id. at 130), but otherwise most other household chores are performed by his mother or friend. (Id. at 64-66.) B. Procedural History On March 11, 2008, plaintiff filed applications for disability insurance benefits and supplemental security income, alleging disability beginning January 25, 2007 due to HIV and lower back problems. (Id. at 102-106, 120.) The applications were denied on July 28, 2008. (Id. at 76.) On October 23, 2008, plaintiff requested a hearing (id. at 83), and appeared with his representative before ALJ Seymour Rayner on October 14, 2009. (Id. at 42.) By decision dated November 16, 2009, ALJ Rayner found that plaintiff was not disabled. (Id. at 32-40.) Plaintiff then filed a timely appeal to the Appeals Council, which was denied on March 19, 2010. (Id. at 1-3.) Plaintiff then filed this action on May 21, 2010, and the Commissioner served the administrative record on September 21, 2010, and filed his answer on September 22, 2010. On February 25, 2011, the parties bundled their papers: Commissioner moved the Court for a judgment on the pleadings and plaintiff responded and cross-moved for a judgment on the pleadings; Commissioner replied and plaintiff submitted a reply on his cross-motion. The motions are fully submitted and the Court has carefully considered the parties’ arguments. II. Discussion A. Standard of Review A district court may only set aside a determination by an ALJ that is based upon legal error or that is unsupported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). The Supreme Court has defined “substantial evidence” in Social Security cases as “more than a mere scintilla” and that which “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S." }, { "docid": "12311687", "title": "", "text": "DECISION AND ORDER ELIZABETH A. WOLFORD, District Judge. I. INTRODUCTION Plaintiff Daniel Beckers (“Plaintiff’) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (“the Commissioner”), denying Plaintiffs application for Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (“ALJ”) Gerardo Perez was not supported by substantial evidence in the record and was based on erroneous legal standards. Presently before the Court are the parties’ opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 4, 11). For the reasons set forth below, the Commissioner’s motion is denied, Plaintiffs motion is granted in part, and this matter is remanded for further administrative proceedings. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. Overview On May 25, 2010, Plaintiff protectively filed applications for SSD and SSI. (Tr. 124-35, 152). In his application, Plaintiff alleged disability since April 15, 2009, due to bipolar disorder, anxiety disorder, and hypothyroidism. (Tr. 124-35, 156). Plaintiffs applications for SSD and SSI were initially denied on September 16, 2010. (Tr. 75-82). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (“ALJ”). (Tr. 83-84). On August 23, 2011, Plaintiff, represented by counsel, testified at a hearing before ALJ Gerardo Perez. (Tr. 51-70). Vocational Expert (“VE”) Hector Puig also appeared and testified. (Tr. 64-69). On September 2, 2011, ALJ Perez issued a decision finding Plaintiff not disabled. (Tr. 21-33). On March 8, 2013, the Appeals Council denied review, rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 1-7). Plaintiff commenced this civil action appealing the final decision of the Commissioner on April 30, 2013. (Dkt. 1). B. The Non-Medical Evidence 1. Plaintiffs Testimony Plaintiff was 26 years old on the alleged disability onset date. (Tr. 32). He attended school through the tenth grade, and later received his GED. (Tr. 55). His previous work included food vender, department manager, and waiter. (Tr. 55; Tr. 157). Plaintiff testified that he was unable" }, { "docid": "20061217", "title": "", "text": "short period of time (id. at 260). Plaintiff stated that he can drive a car for short five-minute trips to go to the drive-through grocery store because he is unable to walk through a store. (Id. at 256.) Plaintiff also stated that he does not take public transportation. (Id.) Plaintiff also testified that showering and other such activities are difficult. (Id. at 261-62.) B. Procedural History On April 29, 2005, plaintiff filed a DIB application, alleging disability since De cember 4, 2003. (Id. at 29.) The claim was initially denied on September 21, 2005. (Id. at 40-43.) A hearing was held before an Administrate Law Judge (“ALJ”) on February 4, 2008. (Id. at 244-73.) On March 14, 2008, the ALJ issued a written decision finding that plaintiff was not disabled. (Id. at 26-38.) The Appeals Council denied plaintiff s request for review on June 24, 2008. (Id. at 4-7.) Plaintiff filed the complaint in this action on August 21, 2008. On March 18, 2009, defendant answered and filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff submitted his opposition to the motion on May 26, 2009, requesting that the ALJ’s decision be reversed or remanded for further review. This matter is fully submitted. II. Discussion A. Legal Standard 1. Standard of Review A district court may set aside a determination by an ALJ only if the decision is based upon legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir.1998) (citing Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). The Supreme Court has defined “substantial evidence” in Social Security cases as “more than a mere scintilla” and that which “a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997) (defining substantial evidence as “such relevant evidence as a reasonable" }, { "docid": "16390992", "title": "", "text": "affirmed the SSA’s decision that Hagans’s eligibility for disability benefits ended on September 1, 2004. Hagans has continued to receive benefits pending the outcome of this appeal. Hagans also filed a new application for disability insurance benefits on January 20, 2010. II. The District Court had jurisdiction to review the final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review over all legal issues. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir.1999). We review an ALJ’s decision under the same standard of review as the District Court, to determine whether there is substantial evidence on the record to support the ALJ’s decision. See 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence has been defined as “more than a mere scintilla”; it means “such relevant evidence as a reasonable mind might accept as adequate.” Plummer, 186 F.3d at 427 (quotations marks omitted). “Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.2001). III. We begin with the issue to which we will devote the bulk of this opinion: Hagans’s assertion that the District Court erred by finding that the relevant date for determining whether he continued to be disabled was the date on which the SSA asserts that his disability had ceased— September 1, 2004 — rather than the date of the ALJ’s hearing or the date of the ALJ’s ruling (September 22, 2008 or February 26, 2009, respectively). Use of one of these later dates would bolster Hagans’s claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing. The SSA contends that review of Hagans’s disability should be confined to the date on which the SSA first found that Hagans was no longer disabled — that is, September 1, 2004. The provision we" }, { "docid": "19717131", "title": "", "text": "Administration (“SSA”), claiming that he had cervical, left shoulder, and lumbar sprains from his February 2008 fall and was unable to work. Id. at 89-90,126. The application was denied. Id. at 35, 50-57. Plaintiff requested a hearing, which was held before Administrative Law Judge (“ALJ”) Andrew S. Weiss on May 13, 2010. Id. at 13-34. Two weeks later, the ALJ found Plaintiff was not disabled and denied him benefits. Id. at 36-45. Plaintiff sought review of the ALJ’s decision by the Social Security Administration’s (“SSA”) Appeals Council. Id. at 11-12. On May 19, 2011, the Appeals Council denied Plaintiffs request for review, rendering ALJ Weiss’ decision the final decision of the Commissioner. Id. at 1-6. Plaintiff then petitioned this Court for review. STANDARD OF REVIEW When a claimant challenges the SSA’s denial of disability benefits, the Court’s function is not to evaluate de novo whether the claimant is disabled, but rather to determine only “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir.2009); 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive----”). Substantial evidence is “more than a mere scintilla”; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir.2008)). The substantial-evidence test applies not only to the Commissioner’s factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y.1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the" } ]

[ { "docid": "9795511", "title": "", "text": "dismiss is REVERSED and the request is GRANTED. We REMAND to the district court for consideration of the motion to dismiss in a manner consistent herewith. . 42 U.S.C. § 1981 (Supp. Ill 1991). . 42 U.S.C. § 1983 (1988). Wicks also asserted a claim under Title VII of the Civil Rights Act of 1964 against the MSES. That claim is not at issue in this appeal. .\"Although the statutoiy language of § 1983 does not expressly provide for an immunity defense, courts have consistently held that 'government officials are entitled to some form of immunity from suits for damages. As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability. Geter v. Fortenberry (Geter I), 849 F.2d 1550, 1552 (5th Cir.1988) (citing Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 2731, 73 L.Ed.2d 396 (1982)). . Lion Boulos v. Wilson, 834 F.2d 504, 506 (5th Cir. 1987) (citing 28 U.S.C. § 1291 (1986)). . Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct 2806, 86 L.Ed.2d 411 (1985). . Helton v. Clements, 787 F.2d 1016 (5th Cir. 1986). . Mitchell. . 834 F.2d at 507. . Id. at 507-08. The Lion Boulos court noted that when the assertion of the qualified immunity defense turned purely on a question of law, the district court should rule on the motion to dismiss without discovery. Id. at 508. The same would be true if the facts upon which the defense of qualified immunity turned were not disputed by the parties. See Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6, 97 L.Ed.2d 523 (1987) (\"[I]f the actions Anderson claims he took are different from those the Creightons allege ... then discovery may be necessary before Anderson's motion for summary judgment on qualified immunity grounds can be resolved.”). . Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994) (‘‘The burden of negating the defense lies with the plaintiffs.”); Geter I, 849 F.2d at 1554 (“Where a plaintiff's" } ]

[ { "docid": "20175814", "title": "", "text": "immunity may be immediately appealed. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985). This court has applied Mitchell to trial court discovery orders that, through overbreadth, effectively deprive public officials of an immunity from suit. Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994-95 (5th Cir.1995) One of the most salient benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive, Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986). Consequently, this court has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense. As we explained in Wicks, supra, a district court must first find “that the plaintiffs pleadings assert facts which, if true, would overcome the defense of qualified immunity.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (directing that a plaintiff must “state a claim for relief that is plausible on its face” — excluding statements that are “no more than conclusions” which are “not entitled to the assumption of truth”). Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity. After the district court finds a plaintiff has so pled, if the court remains “unable to rule on the immunity defense without further clarification of the facts,” it may issue a discovery order “narrowly tailored to uncover only those facts needed to rule on the immunity claim.” Lion Boulos, 834 F.2d at 507-08. This court lacks jurisdiction to review interlocutory orders in qualified immunity cases complying with these requirements. See, e.g., Edwards v. Cass Cnty., Tex., 919 F.2d 273, 275-76 (5th Cir.1990). But we may review the order under the collateral order doctrine when a district court fails to find first that the plaintiffs complaint overcomes a defendant’s qualified immunity defense, Wicks," }, { "docid": "8107488", "title": "", "text": "complying with these requirements.” Id. (citing Edwards v. Cass Cnty., Tex., 919 F.2d 273, 275-76 (5th Cir. 1990)). “But we may review the order under the collateral order doctrine when a district court fails to find first that the plaintiffs complaint overcomes a defendant’s qualified immunity defense, Wicks, 41 F.3d at 994-95; when the court refuses to rule on a qualified immunity defense, Helton, 787 F.2d at 1017; or when the court’s discovery order exceeds the requisite ‘narrowly tailored’ scope, Lion Boulos, 834 F.2d at 507-08.” Backe, 691 F.3d at 648. The defendants argue that we have jurisdiction and that the district court’s order should be vacated because the district court did not follow the careful procedure set forth in Backe, Wicks, Helton, and Lion Boulos. We agree. The district court did not explicitly rule on the defendants’ qualified-immunity defense other than to note that the plaintiffs “set out the reasons [they] felt that qualified immunity did net apply,” that the defendants “have not contradicted those allegations,” and that accordingly, whether the defendants are entitled to qualified immunity “is certainly contested.” The district court failed to make an initial determination that the plaintiffs’ allegations, if true, would defeat qualified immunity, falling short of the finding required by Backe and Wicks; and unlike the court in Lion Boulos, the district court did not identify any questions of fact it needed to resolve before it would be able to determine whether the defendants were entitled to qualified immunity. Cf., e.g., Backe, 691 F.3d at 647-49; Wicks, 41 F.3d at 994; Lion Boulos, 834 F.2d at 506-08. Because we conclude that the district court did not fulfill its duty under either step of the frame work just described, “for materially the same reasons,” we both have jurisdiction to review the district court’s discovery order and we must vacate it. Backe, 691 F.3d at 648. Accordingly, we VACATE the district court’s order and REMAND the case to the district court with instructions to follow the procedures outlined in Backe, Wicks, Helton, and Lion Boulos. VACATED and REMANDED with INSTRUCTIONS. . The plaintiffs suggest that" }, { "docid": "8620025", "title": "", "text": "Cir.2008), and denials of summary judgment do not qualify as final decisions in most instances, Ortiz v. Jordan, — U.S.-, 131 S.Ct. 884, 891, 178 L.Ed.2d 703 (2011). However, Hyde and Biang appeal the denial of qualified immunity. Assertions of qualified immunity may fall under one of the exceptions to final judgment under the collateral order doctrine. Id.; Viilo, 547 F.3d at 711. Some pretrial orders denying qualified immunity are appealable immediately because review after trial would come too late to vindicate the right of public officials not to stand trial. Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Viilo, 547 F.3d at 711. Accordingly, orders denying summary judgment on the basis of qualified immunity are appealable immediately when the appellate court need not consider the correctness of the plaintiff’s version of the facts but need only determine a question of law. Mitchell, 472 U.S. at 528, 105 S.Ct. 2806; Viilo, 547 F.3d at 711. If the immunity question cannot be decided without resolving a disputed question of fact, we lack jurisdiction over the appeal of that question. Ortiz, 131 S.Ct. at 891; Hill v. Coppleson, 627 F.3d 601, 605 (7th Cir.2010). We review de novo the district court’s denial of defendants’ motions for summary judgment based on qualified immunity. Hill, 627 F.3d at 605. Qualified immunity protects government officials from liability for civil damages if their actions did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Edüd 396 (1982). It shields an officer from liability if the officer “reasonably believes that his or her conduct complies with the law.” Pearson, 555 U.S. at 244, 129 S.Ct. 808. Analysis of an assertion of qualified immunity involves two familiar questions: (1) whether a constitutional right was violated using plaintiffs version of the facts, and (2) whether that right was clearly established at the time. Pearson, 555 U.S. at 236, 129 S.Ct. 808;" }, { "docid": "20714134", "title": "", "text": "its First Amendment rights to free speech and religious freedom. Counts VII through IX are Missouri common law tort claims. The Officials moved for summary judgment, asking the district court to dismiss Counts I through VI on qualified immunity grounds and to decline to exercise supplemental jurisdiction over Counts VII through IX. After wading through an extensive record — the Officials’ appendix on appeal is comprised of twelve volumes and nearly 3,000 pages — the district court held there were genuine issues of material fact precluding summary judgment with respect to Counts I, II, III, and V. The court dismissed Counts IV and VI but allowed the remaining counts to proceed to trial. The Officials appeal the denial of qualified immunity as to Counts I, II, III, and V. II. DISCUSSION A. Qualified Immunity: General Principles “The doctrine of 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.’ ” Pearson v. Callahan, 555 U.S. -, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity is not only a defense to liability but also an immunity from suit. Id Because qualified immunity “is effectively lost if a case is erroneously permitted to go to trial,” a district court order denying qualified immunity is immediately appealable under the collateral order exception to the final judgment rule “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 526-27, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Inasmuch as we have jurisdiction, we review the district court’s denial of qualified immunity de novo. See Nelson v. Corr. Med. Servs., 583 F.3d 522, 527 (8th Cir.2009) (en banc) (citing Plemmons v. Roberts, 439 F.3d 818, 822 (8th Cir.2006)). We consider two questions: (1) whether the plaintiff has shown the violation of a statutory or constitutional right, and (2) whether that right was clearly established at the time of the alleged" }, { "docid": "20694535", "title": "", "text": "is entitled to absolute immunity. Daily and Campbell were not dismissed from the third claim based on their involvement in the destruction of the bathrobe belt semen stain. Finally, the district court denied Armstrong leave to amend his complaint because the new allegations were too vague to state claims upon which relief could be granted. Norsetter, Daily, and Campbell took these interlocutory appeals from the district court’s denial of their motions to dismiss these two claims for qualified immunity. II. Analysis A. The Scope of Appellate Jurisdiction An appeal from a denial of an official defendant’s motion to dismiss or for summary judgment based on the defense of qualified immunity is permitted as an appeal from a collateral order because qualified immunity is “immunity from suit rather than a mere defense to liability,” and is “effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); see also Behrens v. Pelletier, 516 U.S. 299, 307, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (relying on Mitchell to hold that “an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal”). The appeal is limited in scope for the same reason it is permitted: the question of qualified immunity is “conceptually distinct from the merits of the plaintiffs claim that his rights have been violated.” Mitchell, 472 U.S. at 527-28, 105 S.Ct. 2806. In this posture, we “need not consider the correctness of the plaintiffs version of the facts.” Id. at 528, 105 S.Ct. 2806. The qualified immunity defense requires us to consider only two limited questions at this stage: first, whether plaintiff has alleged a violation of his constitutional rights, and second, whether the violation was clearly established in the law at the time of the defendant’s conduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We must decline plaintiff Armstrong’s invitation to review the separate issue posed by the district court’s denial of leave" }, { "docid": "8107486", "title": "", "text": "immediately appeal-able as a collateral final order, see, e.g., Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Backe, 691 F.3d at 647-49. “One of the most salient benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive.” Backe, 691 F.3d at 648 (citing Helton, 787 F.2d at 1017). But cf. Wicks, 41 F.3d at 994 (“[A] party asserting the defense of qualified immunity is not immune from all discovery, only that which is avoidable or overly broad.” (citation and internal quotation marks omitted)). “Consequently, this court has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense.” Backe, 691 F.3d at 648. As we explained in Wicks, a district court must first find “that the plaintiffs pleadings assert facts which, if true, would overcome the defense of qualified immunity.” Wicks, 41 F.3d at 994; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (directing that a plaintiff must “state a claim to relief that is plausible on its face” — excluding statements that are “no more than conclusions” which are “not entitled to the assumption of truth”) (internal quotation marks omitted). “Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.” Backe, 691 F.3d at 648. “After the district court finds a plaintiff has so pleaded, if the court remains ‘unable to rule on the immunity defense without further clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987)). “This court lacks jurisdiction to review interlocutory orders in qualified immunity cases" }, { "docid": "20175813", "title": "", "text": "for a Better Env’t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 1012-1013, 140 L.Ed.2d 210 (1998). Appellate courts have jurisdiction over virtually all “final decisions” of the district court, 28 U.S.C. § 1291, a class that ordinarily does not include discovery orders. Lion Boulos v. Wilson, 884 F.2d 504, 506 (5th Cir.1987). Section 1291 does, however, include those interlocutory orders that “[1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] [are] effectively unreviewable on appeal from a final judgment.” Texas v. Caremark, Inc., 584 F.3d 655, 657-58 (5th Cir.2009). A district court’s denial of qualified immunity to public officials is exactly such an order. As the Supreme Court has emphatically directed, “[qualified immunity is an immunity from suit rather than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). Because immunity is “effectively lost if a case is erroneously permitted to go to trial,” a denial of qualified immunity may be immediately appealed. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985). This court has applied Mitchell to trial court discovery orders that, through overbreadth, effectively deprive public officials of an immunity from suit. Wicks v. Miss. State Emp’t Servs., 41 F.3d 991, 994-95 (5th Cir.1995) One of the most salient benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive, Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986). Consequently, this court has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense. As we explained in Wicks, supra, a district court must first find “that the plaintiffs pleadings assert facts which, if true, would overcome the defense of qualified immunity.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009) (directing that a plaintiff must “state a claim for relief that is plausible on" }, { "docid": "19402561", "title": "", "text": "of § 1291 and is thus generally not immediately appealable. Johnson, 515 U.S., at 309, 115 S.Ct. 2151. But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. Id., at 311, 115 S.Ct. 2151; Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). \"[Q]ualified immunity is 'an immunity from suit rather than a mere defense to liability.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell, supra, at 526, 105 S.Ct. 2806). As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662, 671-672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost. See ibid ; Johnson, supra, at 311-312, 115 S.Ct. 2151 (citing Mitchell, supra, at 525-527, 105 S.Ct. 2806). Respondent argues that our decision in Johnson, forecloses appellate jurisdiction under the circumstances here, but the order from which the appeal was taken in Johnson was quite different from the order in the present case. In Johnson, the plaintiff brought suit against certain police officers who, he alleged, had beaten him. 515 U.S., at 307, 115 S.Ct. 2151. These officers moved for summary judgment, asserting that they were not present at the time of the alleged beating and had nothing to do with it. Id ., at 307-308, 115 S.Ct. 2151. The District Court determined, however, that the evidence in the summary judgment record was sufficient to support a contrary finding, and the court therefore denied the officers' motion for summary judgment. Id ., at 308, 115 S.Ct. 2151. The officers then appealed, arguing that the District Court had not correctly analyzed the relevant evidence. Ibid ." }, { "docid": "8107487", "title": "", "text": "at 994; see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (directing that a plaintiff must “state a claim to relief that is plausible on its face” — excluding statements that are “no more than conclusions” which are “not entitled to the assumption of truth”) (internal quotation marks omitted). “Thus, a plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity.” Backe, 691 F.3d at 648. “After the district court finds a plaintiff has so pleaded, if the court remains ‘unable to rule on the immunity defense without further clarification of the facts,’ it may issue a discovery order ‘narrowly tailored to uncover only those facts needed to rule on the immunity claim.’” Id. (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507-08 (5th Cir.1987)). “This court lacks jurisdiction to review interlocutory orders in qualified immunity cases complying with these requirements.” Id. (citing Edwards v. Cass Cnty., Tex., 919 F.2d 273, 275-76 (5th Cir. 1990)). “But we may review the order under the collateral order doctrine when a district court fails to find first that the plaintiffs complaint overcomes a defendant’s qualified immunity defense, Wicks, 41 F.3d at 994-95; when the court refuses to rule on a qualified immunity defense, Helton, 787 F.2d at 1017; or when the court’s discovery order exceeds the requisite ‘narrowly tailored’ scope, Lion Boulos, 834 F.2d at 507-08.” Backe, 691 F.3d at 648. The defendants argue that we have jurisdiction and that the district court’s order should be vacated because the district court did not follow the careful procedure set forth in Backe, Wicks, Helton, and Lion Boulos. We agree. The district court did not explicitly rule on the defendants’ qualified-immunity defense other than to note that the plaintiffs “set out the reasons [they] felt that qualified immunity did net apply,” that the defendants “have not contradicted those allegations,” and that accordingly, whether the defendants are entitled" }, { "docid": "22532712", "title": "", "text": "final decision within the meaning of § 1291 and is thus generally not immediately appealable. Johnson, 515 U.S., at 309, 115 S.Ct. 2151. But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. Id., at 311, 115 S.Ct. 2151;Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). \"[Q]ualified immunity is 'an immunity from suit rather than a mere defense to liability.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell, supra, at 526, 105 S.Ct. 2806). As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662, 671-672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time the immunity from standing trial will have been irretrievably lost. See ibid ;Johnson, supra, at 311-312, 115 S.Ct. 2151 (citing Mitchell, supra, at 525-527, 105 S.Ct. 2806). Respondent argues that our decision in Johnson, forecloses appellate jurisdiction under the circumstances here, but the order from which the appeal was taken in Johnson was quite different from the order in the present case. In Johnson, the plaintiff brought suit against certain police officers who, he alleged, had beaten him. 515 U.S., at 307, 115 S.Ct. 2151. These officers moved for summary judgment, asserting that they were not present at the time of the alleged beating and had nothing to do with it. Id., at 307-308, 115 S.Ct. 2151. The District Court determined, however, that the evidence in the summary judgment record was sufficient to support a contrary finding, and the court therefore denied the officers' motion for summary judgment. Id., at 308, 115 S.Ct. 2151. The officers then appealed, arguing that the District Court had not correctly analyzed the relevant evidence. Ibid." }, { "docid": "8107489", "title": "", "text": "to qualified immunity “is certainly contested.” The district court failed to make an initial determination that the plaintiffs’ allegations, if true, would defeat qualified immunity, falling short of the finding required by Backe and Wicks; and unlike the court in Lion Boulos, the district court did not identify any questions of fact it needed to resolve before it would be able to determine whether the defendants were entitled to qualified immunity. Cf., e.g., Backe, 691 F.3d at 647-49; Wicks, 41 F.3d at 994; Lion Boulos, 834 F.2d at 506-08. Because we conclude that the district court did not fulfill its duty under either step of the frame work just described, “for materially the same reasons,” we both have jurisdiction to review the district court’s discovery order and we must vacate it. Backe, 691 F.3d at 648. Accordingly, we VACATE the district court’s order and REMAND the case to the district court with instructions to follow the procedures outlined in Backe, Wicks, Helton, and Lion Boulos. VACATED and REMANDED with INSTRUCTIONS. . The plaintiffs suggest that this appeal is moot because they filed their amended complaint after the defendants filed their notice of appeal. We are satisfied that this appeal is not moot. The district court has not ruled on the defendants’ entitlement to qualified immunity, the discovery order remains in place, and the defendants have not yet complied with that order. A live controversy therefore remains. . The plaintiffs argue that the district court implicitly found that they had pleaded facts sufficient to overcome the defendants’ immunity defense, citing the implied-findings doc trine. This argument is without merit. The implied-findings doctrine permits us to affirm a district court’s implied findings of fact if they are supported by the evidence. See Century Marine Inc. v. United States, 153 F.3d 225, 230-31 (5th Cir.1998); see Levy Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 631 (5th Cir. 2013); Consedine v. Pers. Mgmt., Inc., 539 Fed.Appx 565, 575 & n. 10 (5th Cir.2013) (per curiam) (unpublished). By contrast, a defendant's entitlement to qualified immunity generally will not entail" }, { "docid": "20694536", "title": "", "text": "773 (1996) (relying on Mitchell to hold that “an order rejecting the defense of qualified immunity at either the dismissal stage or the summary judgment stage is a ‘final’ judgment subject to immediate appeal”). The appeal is limited in scope for the same reason it is permitted: the question of qualified immunity is “conceptually distinct from the merits of the plaintiffs claim that his rights have been violated.” Mitchell, 472 U.S. at 527-28, 105 S.Ct. 2806. In this posture, we “need not consider the correctness of the plaintiffs version of the facts.” Id. at 528, 105 S.Ct. 2806. The qualified immunity defense requires us to consider only two limited questions at this stage: first, whether plaintiff has alleged a violation of his constitutional rights, and second, whether the violation was clearly established in the law at the time of the defendant’s conduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We must decline plaintiff Armstrong’s invitation to review the separate issue posed by the district court’s denial of leave to amend the complaint to add a federal constitutional claim for malicious prosecution. Whatever the merits of the argument, we lack jurisdiction to consider it in these appeals for several reasons. First, it was not the subject of an appeal-able opder. Second, Armstrong did not file a cross-appeal, which is necessary if an appellee seeks to modify a judgment in his favor. E.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999). Finally, this is not the sort of closely related issue that warrants the exercise of pendent appellate jurisdiction — “a narrow doctrine that allows an appellate court ‘to review an otherwise unappealable interlocutory order if it is inextricably intertwined with an appeal-able one.’ ” Abelesz v. OTP Bank, 692 F.3d 638, 647 (7th Cir.2012), quoting Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir.2010); see generally Swint v. Chambers County Comm’n, 514 U.S. 35, 43-51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) (restricting pendent appellate jurisdiction). For now, we have" }, { "docid": "8107485", "title": "", "text": "overcome the defendants’ qualified immunity defense. After the defendants filed their notice of appeal, the plaintiffs filed an amended complaint adding further factual and legal allegations, but they did so without the benefit of the additional discovery ordered by the district court. DISCUSSION This court generally lacks jurisdiction to entertain interlocutory appeals taken from district court discovery orders because such orders are nonfinal and therefore not immediately appealable. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112-13, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). However, we have repeatedly held that a district court’s order that declines or refuses to rule on a motion to dismiss based on a government officer’s defense of qualified immunity is an immediately appealable order. Backe v. LeBlanc, 691 F.3d 645 (5th Cir.2012); Wicks v. Miss. State Emp’t Servs., 41 F.3d 991 (5th Cir.1995); Helton v. Clements, 787 F.2d 1016 (5th Cir.1986). That is because such an order is tantamount to an order denying the defendants qualified immunity, see Backe, 691 F.3d at 647-49-a class of order that is immediately appeal-able as a collateral final order, see, e.g., Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Backe, 691 F.3d at 647-49. “One of the most salient benefits of qualified immunity is protection from pretrial discovery, which is costly, time-consuming, and intrusive.” Backe, 691 F.3d at 648 (citing Helton, 787 F.2d at 1017). But cf. Wicks, 41 F.3d at 994 (“[A] party asserting the defense of qualified immunity is not immune from all discovery, only that which is avoidable or overly broad.” (citation and internal quotation marks omitted)). “Consequently, this court has established a careful procedure under which a district court may defer its qualified immunity ruling if further factual development is necessary to ascertain the availability of that defense.” Backe, 691 F.3d at 648. As we explained in Wicks, a district court must first find “that the plaintiffs pleadings assert facts which, if true, would overcome the defense of qualified immunity.” Wicks, 41 F.3d" }, { "docid": "5271019", "title": "", "text": "separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.” Mohawk Indus., Inc v. Carpenter, 558 U.S. 100, 105, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (citation omitted). The Supreme Court has frequently applied the collateral-order doctrine in the context of immunity defenses, reasoning that a core attribute of the immunity defense is immunity from suit altogether. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity). We therefore have jurisdiction to hear this interlocutory appeal. The defendants-appellants’ immunity questions are presented in the context of a Rule 12(b)(6) motion to dismiss. We review a district court’s ruling on a Rule 12(b)(6) motion de novo. Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 767 F.3d 554, 558 (6th Cir. 2014). When analyzing a • Rule 12(b)(6) motion, “[t]he complaint is viewed in the light most favorable to [the plaintiffs]; the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in [the plaintiffs’] favor.” Gavitt v. Born, 835 F.3d 623, 639-40 (6th Cir. 2016). However, “a legal conclusion couched as a factual allegation” need not be accepted as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). When questions of immunity are presented in this context, the court’s task can be difficult. The Supreme Court has repeatedly “stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam)). .However, “[w]hen qualified immunity is asserted at the pleading stage, the precise factual basis for the plaintiffs claim or claims may be hard to identify.” Id. at 238-39, 129 S.Ct. 808 (citation omitted). Thus, we have held that it is “generally inappropriate for a district court to grant" }, { "docid": "5271018", "title": "", "text": "that the defendants were not entitled to immunity. With respect to Clinton’s qualified-immunity defense, the district court held that the plaintiffs’ constitutional rights “were clearly established” and that thus qualified immunity was unavailable. With respect to Khouri’s Eleventh Amendment-immunity defense, the district court concluded that, because the plaintiffs sought only prospective injunctive relief, Eleventh Amendment immunity was also unavailable as to the plaintiffs’ remaining claims. Citing the “collateral order” doctrine, both Clinton and Khouri appeal the district court’s denial of their immunity defenses. Litigation against the remaining defendants, including Emergency Manager Coulter, currently continues in the district court below. II We have jurisdiction over only “final decisions of the district courts.” 28 U.S.C. § 1291. Although the denial of a Rule 12(b)(6) motion to dismiss is not a final order, there are a few exceptions that permit courts of appeals to review non-final orders on an interlocutory basis. One exception is the collateral-order doctrine, which permits parties to appeal a non-final order “if it (1) conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.” Mohawk Indus., Inc v. Carpenter, 558 U.S. 100, 105, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (citation omitted). The Supreme Court has frequently applied the collateral-order doctrine in the context of immunity defenses, reasoning that a core attribute of the immunity defense is immunity from suit altogether. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity). We therefore have jurisdiction to hear this interlocutory appeal. The defendants-appellants’ immunity questions are presented in the context of a Rule 12(b)(6) motion to dismiss. We review a district court’s ruling on a Rule 12(b)(6) motion de novo. Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 767 F.3d 554, 558 (6th Cir. 2014). When analyzing a • Rule 12(b)(6) motion, “[t]he complaint is viewed in the light most favorable to" }, { "docid": "8107484", "title": "", "text": "Federal Rule of Civil Procedure 12(b)(6), arguing that the plaintiffs failed to allege facts sufficient to support the inference of a constitutional violation; failed to allege facts specifically addressing how each of the individual federal officers caused a deprivation of the plaintiffs’ constitutional rights; and failed to state a claim for the deprivation of their clearly established constitutional rights. The district court deferred ruling on the defendants’ threshold qualified immunity defense, instead issuing an order allowing the plaintiffs limited discovery on the issue of qualified immunity after observing that whether the defendants are entitled to qualified immunity is “certainly contested.” The district court did not give the parties further guidance or limitations on the scope of discovery. The defendants-appellants timely appealed. See FED. R. APP. P. 4(a)(1)(B). They contend that the district court abused its discretion by failing to rule on their immunity claim before permitting discovery pertaining to qualified immunity. Additionally, they argue that the plaintiffs’ constitutional claims fail as a matter of law and that the plaintiffs fail to articulate facts which plausibly overcome the defendants’ qualified immunity defense. After the defendants filed their notice of appeal, the plaintiffs filed an amended complaint adding further factual and legal allegations, but they did so without the benefit of the additional discovery ordered by the district court. DISCUSSION This court generally lacks jurisdiction to entertain interlocutory appeals taken from district court discovery orders because such orders are nonfinal and therefore not immediately appealable. See, e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 112-13, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). However, we have repeatedly held that a district court’s order that declines or refuses to rule on a motion to dismiss based on a government officer’s defense of qualified immunity is an immediately appealable order. Backe v. LeBlanc, 691 F.3d 645 (5th Cir.2012); Wicks v. Miss. State Emp’t Servs., 41 F.3d 991 (5th Cir.1995); Helton v. Clements, 787 F.2d 1016 (5th Cir.1986). That is because such an order is tantamount to an order denying the defendants qualified immunity, see Backe, 691 F.3d at 647-49-a class of order that is" }, { "docid": "8107490", "title": "", "text": "this appeal is moot because they filed their amended complaint after the defendants filed their notice of appeal. We are satisfied that this appeal is not moot. The district court has not ruled on the defendants’ entitlement to qualified immunity, the discovery order remains in place, and the defendants have not yet complied with that order. A live controversy therefore remains. . The plaintiffs argue that the district court implicitly found that they had pleaded facts sufficient to overcome the defendants’ immunity defense, citing the implied-findings doc trine. This argument is without merit. The implied-findings doctrine permits us to affirm a district court’s implied findings of fact if they are supported by the evidence. See Century Marine Inc. v. United States, 153 F.3d 225, 230-31 (5th Cir.1998); see Levy Gardens Partners 2007, L.P. v. Commonwealth Land Title Ins. Co., 706 F.3d 622, 631 (5th Cir. 2013); Consedine v. Pers. Mgmt., Inc., 539 Fed.Appx 565, 575 & n. 10 (5th Cir.2013) (per curiam) (unpublished). By contrast, a defendant's entitlement to qualified immunity generally will not entail findings of fact, see, e.g., Cantrell v. City of Murphy, 666 F.3d 911, 918 (5th Cir.2012), and extending the implied-findings doctrine to this context would render the \"careful procedure” set forth in Backe, Wicks, and Lion Boulos virtually meaningless, see, e.g., Backe, 691 F.3d at 648: Wicks, 41 F.3d at 994-95; Lion Boulos, 834 F.2d at 507. . We decline the defendants’ invitation to rule on their entitlement to qualified immunity for the first time on appeal. Among other considerations, we note that after the defendants filed their notice of appeal, the plaintiffs filed an amended complaint elaborating on their claims, which weighs in favor of allowing the district court to resolve this question in the first instance. See, e.g., Backe, 691 F.3d at 649 (reversing and remanding to the district court with instructions to follow the procedure set forth in Wiclcs, Lion Boulos, and others). See generally Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (explaining that as a rule, federal appellate courts do not resolve questions not" }, { "docid": "9429529", "title": "", "text": "Wipf 810 F.2d 170, 173 (8th Cir.1987) (per curiam) (allowing interlocutory appeal from district court’s announced refusal to entertain any further motions prior to trial, and remanding for ruling on qualified immunity defense); Helton v. Clements, 787 F.2d 1016, 1017 (5th Cir.1986) (per curiam) (“[A] refusal to rule on a claim of immunity, like the explicit denial of a claim of immunity, is also immediately appealable under the collateral order doctrine.”); see generally 15 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3914.20, at 388 (Supp.1990) ([T]he purpose of protecting officials against the burdens of trial preparation and trial suggests that at some point appeal should be available from failure to make a pretrial ruling on an immunity defense_”). That they chose not to do so constitutes a waiver of the right to an interlocutory appeal. See Kennedy v. City of Cleveland, 797 F.2d 297, 301 (6th Cir.1986) (“[I]f the order [denying immunity] is appealable at all, it must be appealed within the time set by law, here thirty days, or the right must be considered to have been waived.”), cert. denied, 479 U.S. 1103, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). Our holding — that by failing to appeal from the May 4 order, defendants have waived their right to an interlocutory appeal at any time prior to final judgment— comports well with the Supreme Court’s concern in Forsyth that officials receive adequate protection from the burdens inherent in defending a claim to which they are qualifiedly immune. Relying on Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 2737, 73 L.Ed.2d 396 (1982), the Forsyth Court found that absent a qualified immunity from suit, government officials would be distracted from their duties and inhibited from taking discretionary action. Moreover, potential government officials would be deterred from engaging in public service. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1984). In the present case, however, holding defendants responsible for bringing a timely pretrial motion or a timely appeal from a district court’s final pretrial order should not" }, { "docid": "22532711", "title": "", "text": "this rule\" under which an immediate appeal may be taken to challenge \" 'blatantly and demonstrably false' \" factual determinations. 509 Fed. Appx., at 391 (quoting Moldowan v. Warren, 578 F.3d 351, 370 (C.A.6 2009)). Concluding that none of the District Court's factual determinations ran afoul of that high standard, and distinguishing the facts of this case from those in Scott, the panel held that the officers' conduct violated the Fourth Amendment. 509 Fed.Appx., at 392, and n. 3. The panel said nothing about whether the officers violated clearly established law, but since the panel affirmed the order denying the officers' summary judgment motion,2 the panel must have decided that issue in respondent's favor. We granted certiorari. 571 U.S. ----, 134 S.Ct. 635, 187 L.Ed.2d 415 (2013). II We start with the question whether the Court of Appeals properly exercised jurisdiction under 28 U.S.C. § 1291, which gives the courts of appeals jurisdiction to hear appeals from \"final decisions\" of the district courts. An order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable. Johnson, 515 U.S., at 309, 115 S.Ct. 2151. But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. Id., at 311, 115 S.Ct. 2151;Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). \"[Q]ualified immunity is 'an immunity from suit rather than a mere defense to liability.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell, supra, at 526, 105 S.Ct. 2806). As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662, 671-672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment" }, { "docid": "19402560", "title": "", "text": "appeal may be taken to challenge \" 'blatantly and demonstrably false' \" factual determinations. 509 Fed. Appx., at 391 (quoting Moldowan v. Warren, 578 F.3d 351, 370 (C.A.6 2009) ). Concluding that none of the District Court's factual determinations ran afoul of that high standard, and distinguishing the facts of this case from those in Scott, the panel held that the officers' conduct violated the Fourth Amendment. 509 Fed.Appx., at 392, and n. 3. The panel said nothing about whether the officers violated clearly established law, but since the panel affirmed the order denying the officers' summary judgment motion, the panel must have decided that issue in respondent's favor. We granted certiorari. 571 U.S. ----, 134 S.Ct. 635, 187 L.Ed.2d 415 (2013). II We start with the question whether the Court of Appeals properly exercised jurisdiction under 28 U.S.C. § 1291, which gives the courts of appeals jurisdiction to hear appeals from \"final decisions\" of the district courts. An order denying a motion for summary judgment is generally not a final decision within the meaning of § 1291 and is thus generally not immediately appealable. Johnson, 515 U.S., at 309, 115 S.Ct. 2151. But that general rule does not apply when the summary judgment motion is based on a claim of qualified immunity. Id., at 311, 115 S.Ct. 2151; Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). \"[Q]ualified immunity is 'an immunity from suit rather than a mere defense to liability.' \" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Mitchell, supra, at 526, 105 S.Ct. 2806). As a result, pretrial orders denying qualified immunity generally fall within the collateral order doctrine. See Ashcroft v. Iqbal, 556 U.S. 662, 671-672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This is so because such orders conclusively determine whether the defendant is entitled to immunity from suit; this immunity issue is both important and completely separate from the merits of the action, and this question could not be effectively reviewed on appeal from a final judgment because by that time" } ]

[ { "docid": "22778259", "title": "", "text": "lacked standing to bring a pre-enforcement facial challenge, alleging that plaintiffs did not suffer sufficient harm, and what harm they did suffer was economic, not speech related. Further, the State argued that plaintiffs’ challenge was premature, having been made before the statute became effective. To bring a cause of action in federal court requires that plaintiffs establish at an irreducible minimum an injury in fact; that is, there must be some “ ‘threatened or actual injury resulting from the putatively illegal action ....’” Warth v. Seldin, 422 U. S. 490, 499 (1975), quoting Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973); see also Association of Data Processing Service Organizations v. Camp, 397 U. S. 150, 151-154 (1970). That requirement is met here, as the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution. See Craig v. Boren, 429 U. S. 190, 194 (1976); Doe v. Bolton, 410 U. S. 179, 188 (1973). Even if an injury in fact is demonstrated, the usual rule is that a party may assert only a violation of its own rights. However, in the First Amendment context, “ ‘[ljitigants . . . are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Secretary of State of Maryland v. J. H. Munson Co., 467 U. S. 947, 956-957 (1984), quoting Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). This exception applies here, as plaintiffs have alleged an infringement of the First Amendment rights of bookbuyers. We are not troubled by the pre-enforcement nature of this suit. The State has not suggested that the newly enacted law will not be enforced, and we see no reason to assume otherwise. We conclude that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Further," } ]

[ { "docid": "23260774", "title": "", "text": "every complainant’s tub rest on its own bottom. See id. (stating that a plaintiff ordinarily cannot sue to assert the rights of third parties). When the First Amendment is in play, however, the Court has relaxed the prudential limitations on standing to ameliorate the risk of washing away free speech protections. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). Hence, when freedom of expression is at stake: Litigants ... are permitted to challenge a [policy] not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the [policy’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Against this backdrop, Judge Delahanty strives to persuade us that, even if Berner has standing to challenge the button ban as a past violation of his First Amendment rights (say, by a suit for money damages), he has no standing to seek declaratory and injunctive relief because there is no reasonable likelihood that he will again face similar harm. We are not convinced. Berner is a member of the Maine bar and a full-time practicing lawyer who regularly handles litigation. Born in 1956, much of his career apparently lies ahead of him. Moreover, Maine is not California. The superior court is the principal statewide court of general jurisdiction, see Me.Rev.Stat. Ann. tit. 4, § 105 (West 1989), and its business is handled by a total of only 16 active judges. The law of averages strongly suggests that vocational demands will bring Berner before each and all of these judges in the months and years to come. To cinch matters, the parties remain philosophically on a collision course. Berner’s passion for political pins has not waned, and he has vowed that, when once again afforded the opportunity, he would not hesitate, but for Judge Delahanty’s stated policy, to wear a political button in the jurist’s courtroom. The judge," }, { "docid": "1763939", "title": "", "text": "These limitations assure that a court does not issue “unnecessary pronouncement^]” on constitutional issues, Secretary of State of Md. v. J.H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1983), and that the issues before the court “will be concrete and sharply presented.” Id. (citing, Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Nevertheless, in certain cases, the Court has allowed litigants standing to assert the rights of others. In such cases the inquiry focuses on whether “the third party can reasonably be expected properly to frame the issues and present them with the necessary adversarial zeal.” Secretary of State, 467 U.S. at 956, 104 S.Ct. at 2846 (citing, Craig v. Boren, 429 U.S. 190, 193-194, 97 S.Ct. 451, 454-55, 50 L.Ed.2d 397 (1976)). Finally, in the context of the First Amendment, the Court also considers whether the directly affected party, although able to challenge the statute or action, “may refrain from engaging further in the protected activity” rather than risking “punishment for his conduct_” Id. The es- sence of this consideration is the “danger of chilling free speech”. Id. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973); See also, Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834-35, 63 L.Ed.2d 73 (1980) (“Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the Court”). Analysis of these varied factors establishes that the plaintiffs before the court have standing to challenge the action of this defendant. The constitutional requirement is patently satisfied in that this plaintiff has suffered concrete injury to itself directly traceable to the acts of the" }, { "docid": "15115959", "title": "", "text": "third-party standing when a plaintiff demonstrates that a provision that validly restricts its own speech is overbroad. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). An statute is over-broad if it validly regulates some expressive conduct but also reaches substantial protected speech. See City of Houston, Tex. v. Hill, 482 U.S. 451, 456-57, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). The overbreadth doctrine permits a litigant to “challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But the overbreadth doctrine applies on a provision by provision basis: “the plaintiff must establish injury under a particular provision of a regulation that is validly applied to its conduct, then ‘assert a facial challenge, under the overbreadth doctrine, to vindicate the rights of others not before the court under that provision.’ ” SEIU, Local 5 v. City of Hous., 595 F.3d 588, 598 (5th Cir.2010) (quoting CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1271 (11th Cir.2006)). “Article III standing retains rigor even in an overbreadth claim.” Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 754 (5th Cir.2010). “[I]f [the Charities are] limited by one provision of an ordinance and make[ ] a facial challenge due to the overbreadth of a different provision, there is no constitutional standing, ie., there is no ‘case or controversy,’ as to the separate provision.” SEIU, Local 5, 595 F.3d at 598. “Although various prudential standing principles have been relaxed in some First Amendment cases, this relaxation does not eliminate the distinct and independent requirement of Article III that the dispute between the parties must amount to a case or controversy.” Henderson v. Stalder, 287 F.3d 374, 385 n. 4 (5th Cir.2002) (Jones, C.J., concurring). As set forth above, the Charities have not demonstrated" }, { "docid": "8489667", "title": "", "text": "467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Among these prudential limits is the requirement that a plaintiff “generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In the First Amendment context, however, courts relax the prudential requirement that a litigant raise his own rights and interests. Under the First Amendment overbreadth doctrine, even though a party whose conduct could constitutionally be proscribed by statute may not normally be heard to complain that the statute under which he is prosecuted is so broad that it proscribes constitutionally protected conduct, courts will allow the party to raise the claims of others when protected speech is at issue. Courts do so out of concern that protected speech will be chilled by the statute. Id. at 956-57, 104 S.Ct. 2839. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But such litigants, of course, must still meet the constitutional requirement of injury-in-fact because their own constitutionally unprotected interests will be adversely affected by application of the statute. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L.Rev. 423, 424 (1974) (“[Ojverbreadth attacks involve both the application of the challenged law to the claimant and a different, hypothetical application of the law to third parties.”); see also Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 860 n. 33 (1991). The Supreme Court’s decision in Mun-son is illustrative. In that case, the Supreme Court allowed a professional fundraiser, Munson, to raise the First Amendment rights of his clients, charitable organizations. Munson challenged a statute that prohibited charitable organizations, “in connection with any fundrais-ing activity," }, { "docid": "6077712", "title": "", "text": "only that “[t]he parties remain philosophically on a collision course,” Berner, 129 F.3d at 24, but that there is a strong likelihood Canatella may again face discipline under the challenged provisions. His threat of future prosecution is not merely hypothetical and conjectural, but actual. In relying on Canatella’s disciplinary record to reach our conclusion, we do not maintain that past “prosecution” by itself gives rise to a present case or controversy. But we have no reason to doubt that Cana-tella’s interactions with the State Bar heretofore do not have at least some “continuing, present adverse effects,” Lyons, 461 U.S. at 102, 103 S.Ct. 1660, whether these effects be further discipline, or the chilling of what may be constitutionally protected speech. Because the equitable relief he seeks would alleviate the harm he has alleged, Canatella demonstrates standing and his claims should be allowed to proceed. Moreover, in recognition that “the First Amendment needs breathing space,” the Supreme Court has relaxed the prudential requirements of standing in the First Amendment context. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Where, as here, a plaintiff raises an overbreadth challenge to a statute under the First Amendment, standing arises “not because [the plaintiffs] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. Here, the district court did not take Broadrick and its progeny into account in addressing standing, and its analysis fails to recognize that Canatella challenged the statutes both facially and as applied. We cannot selectively read the facial over-breadth claim out of Canatella’s complaint, and on that basis, reduce the scope of Canatella’s alleged harms for purposes of standing analysis. See American Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1495 (11th Cir.1993); Stretton v. Disciplinary Bd. of Supreme" }, { "docid": "15115958", "title": "", "text": "the two provisions does not eviscerate Article Ill’s requirements. “[S]tanding is not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n. 6, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). And although the Charities’ conduct under the (d) provisions raises similar constitutional concerns to those it advances under the (c) provisions, “a plaintiff who has been subject to injurious conduct of one kind [does not] possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject.” Blum v. Yaretsky, 457 U.S. 991, 999, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). 2. Overbreadth The Charities alternatively argue that even if their activities are not directly affected by the (c) provisions, they should be afforded third-party standing to raise the rights of other charities not before the court. This argument misapprehends the nature of third-party standing, which is a prudential, not a constitutional, limitation on standing. When a party asserts a facial challenge to a statute under the First Amendment, courts may permit third-party standing when a plaintiff demonstrates that a provision that validly restricts its own speech is overbroad. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). An statute is over-broad if it validly regulates some expressive conduct but also reaches substantial protected speech. See City of Houston, Tex. v. Hill, 482 U.S. 451, 456-57, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). The overbreadth doctrine permits a litigant to “challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But the overbreadth doctrine applies on a provision by provision basis: “the plaintiff must establish injury under a particular provision of a regulation that is validly applied to its conduct, then ‘assert a facial challenge, under the overbreadth doctrine, to" }, { "docid": "2576717", "title": "", "text": "rights of adult book buyers in challenging statute prohibiting display of written or visual material harmful to minors because enforcement of statute against bookstores would limit adults’ access to protected materials); Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984) (“ ‘Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ ” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973))); Craig, 429 U.S. at 195, 97 S.Ct. at 455-56 (beer vendor allowed to raise third-party equal protection rights of 18-21 year-old males because rights of third parties would be “ ‘diluted or adversely affected’ ” by enforcement of statute against vendors); Singleton, 428 U.S. at 116-18, 96 S.Ct. at 2875 (physicians have third-party standing to assert rights of low-income women because enforcement of state regulation denying Medicaid payments for non-medically necessary abortions against physicians would infringe rights of low-income women to obtain abortions); Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 1035, 97 L.Ed. 1586 (1953) (white landowner has standing to assert rights of blacks in challenging racially restrictive covenant because covenant only applied to landowners, so that enforcement of covenant against white landowners would infringe fundamental rights of blacks who wish to purchase land). We believe that Harris has failed to show that the First Amendment rights of prison employees will be diluted or adversely affected if Harris is denied standing to assert those rights. We can find no impediment to the ability of the prison guards to assert their own First Amendment rights if they wish to do so. As we noted earlier, the only reason we. can fathom for the reluctance of prison guards to challenge the policy is that they like it; the policy protects them from threats, coercion, and possible retaliation from disgruntled prisoners. Moreover," }, { "docid": "8489668", "title": "", "text": "of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But such litigants, of course, must still meet the constitutional requirement of injury-in-fact because their own constitutionally unprotected interests will be adversely affected by application of the statute. See Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L.Rev. 423, 424 (1974) (“[Ojverbreadth attacks involve both the application of the challenged law to the claimant and a different, hypothetical application of the law to third parties.”); see also Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 860 n. 33 (1991). The Supreme Court’s decision in Mun-son is illustrative. In that case, the Supreme Court allowed a professional fundraiser, Munson, to raise the First Amendment rights of his clients, charitable organizations. Munson challenged a statute that prohibited charitable organizations, “in connection with any fundrais-ing activity, from paying or agreeing to pay as expenses more than 25% of the amount raised.” 467 U.S. at 950, 104 S.Ct. 2839. Munson suffered actual and threatened injury from the statute because Munson’s contracts called for payments in excess of 25 percent of the funds raised for a given event and one of Munson’s charitable clients was consequently reluctant to enter into a contract with Munson. Id. at 954-55, 104 S.Ct. 2839. The Court allowed Munson to invoke the First Amendment rights of his clients because he met the constitutional requirements for standing: The fact that, because Munson is not a charity, there might not be a possibility that the challenged statute could restrict Munson’s own First Amendment rights does not alter the analysis. Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society-to prevent the statute from chilling the First Amendment rights of other parties not before the court. Munson’s ability to serve that function has nothing to do with whether or" }, { "docid": "3635645", "title": "", "text": "a law will stifle protected speech justifies such allowance of third-party standing. This Circuit has followed the Supreme Court’s lead in refusing to place a premium on prudence in the First Amendment context. In Penny Saver Publications v. Village of Hazel Crest, 905 F.2d 150 (7th Cir.1990), we allowed a newspaper to assert the rights of its advertisers. The challenged ordinance applied to solicitation — usually not the business of newspapers, but of the advertisers. Following Munson, we put third-party standing concerns aside in the face of a First Amendment challenge and allowed the newspaper to sue in the advertisers’ stead. Penny Saver, 905 F.2d at 154. In the instant case, we elect to do the same. The assurance of a cautionary approach to standing, requiring Shimer to demonstrate legitimacy as a third-party litigant, is outweighed by the potential chilling effect on prison guards’ protected speech. III. Having determined that Shimer has standing to pursue this claim, we turn next to the standard governing the adjudication of constitutional rights within prison. While the chilling effect on protected speech may be as significant within prison walls, we hold prison administrations to a less stringent standard where constitutional rights.are in question. This more deferential standard is applied to both the rights of prisoners and the rights of nonprisoners within prison walls, Keeney v. Heath, 57 F.3d 579, 581 (7th Cir.1995), so that we apply it here, where the First Amendment rights of prison guards, rather than prisoners, are infringed. We ask of the prison administration only whether its policy is reasonably related to a legitimate penological interest. Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 1881, 104 L.Ed.2d 459 (1989). To satisfy this inquiry we adhere to a four factor test: we ask (1) whether a valid, rational connection exists between the regulation and a legitimate government interest behind the rule; (2) whether there are alternative means of exercising the right in question; (3) what impact accommodation of the asserted constitutional right would have on guards, other inmates, and on the allocation of prison resources; and (4) what easy alternatives" }, { "docid": "7873502", "title": "", "text": "permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Virginia v. Ameri can Booksellers Assoc., Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (internal quotations omitted); see also Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). We conclude that Cheffer has standing to challenge the restrictions placed on her free speech by the Amended Permanent Injunction. B. Neither does the abstention doctrine block Cheffer’s suit. The Supreme Court has directed that federal courts should not intervene in ongoing state proceedings “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” See Younger v. Harris, 401 U.S. 37, 43-44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). As we have noted before, the initial inquiry in determining whether a federal court should abstain when asked to enjoin an ongoing-state civil proceeding is whether an important governmental interest of the state is implicated by that civil action so that such an injunction would be an offense to the State’s interest ... likely to be every bit as great as it would be were this a criminal proceeding. First Alabama Bank v. Parsons Steel, Inc., 825 F.2d 1475, 1483 (11th Cir.1987) (internal quotations omitted), cert. denied, 484 U.S. 1060, 108 S.Ct. 1015, 98 L.Ed.2d 980 (1988). It appears that important state interests, including the enforceability of state court injunctions, are involved in the present case. Younger abstention is only appropriate, however, when the federal constitutional claims at issue can be raised by the federal plaintiff in an ongoing state court proceeding. Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) (holding that Younger applies “so" }, { "docid": "23260773", "title": "", "text": "“an invasion of a legally protected interest which is ... concrete and particularized,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), together with “a sufficient likelihood that he will again be wronged in a similar way,” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983). In other words, the complainant must establish that the feared harm is “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (citations and internal quotation marks omitted). It bears noting that the imminence concept, while admittedly far reaching, is bounded by its Article III purpose: “to ensure that the alleged injury is not too speculative.” Id. at 564 n. 2, 112 S.Ct. at 2138 n. 2. In addition to these benchmarks of constitutional sufficiency, standing doctrine “also embraces prudential concerns regarding the proper exercise of federal jurisdiction.” United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.1992). Under this rubric, courts generally insist that every complainant’s tub rest on its own bottom. See id. (stating that a plaintiff ordinarily cannot sue to assert the rights of third parties). When the First Amendment is in play, however, the Court has relaxed the prudential limitations on standing to ameliorate the risk of washing away free speech protections. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984). Hence, when freedom of expression is at stake: Litigants ... are permitted to challenge a [policy] not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the [policy’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Against this backdrop, Judge Delahanty strives to persuade us that, even if Berner has standing to challenge the button ban as a past violation of his First Amendment rights (say, by a" }, { "docid": "3635643", "title": "", "text": "guards to write directly to the Board and would remedy an informational shortcoming in the clemency proceedings. In addition to the constitutional elements of standing embodied in Article III, the federal judiciary has established certain prudential boundaries on standing. Here, Shimer threatens to run afoul of our limitation on third-party standing. A litigant must generally assert his or her own legal rights and interests, Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). To establish third-party standing, we require that a litigant, in addition to alleging injury-in-fact, allege a sufficiently close relationship with the third party so that the court is assured that the litigant will be an effective proponent of the cause, Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 1370-71, 113 L.Ed.2d 411 (1991), and we consider whether there is some hindrance to the third party’s ability to protect his own interest. Id. However, in the area of First Amendment litigation, the federal courts have relaxed their prudential concern with regard to third-party standing because of the challenged law or regulation’s potential chilling effect on protected expression. Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984) (fund-raising organization allowed to assert First Amendment rights of charities). In Munson, the Supreme Court wrote, “Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to- refrain from constitutionally protected speech or expression.” Id. at 956-57, 104 S.Ct. at 2847 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (book sellers asserting First Amendment rights of book buyers). The stringent requirements for third-party standing are rooted in prudence, rather than the Constitution; accordingly, where circumstances warrant and the Supreme Court allows, we may ease the strictures. Our concern that" }, { "docid": "10074993", "title": "", "text": "its failure to approve Local 505’s request to communicate regarding the 1986 convention proposal. The degree of injury necessary to create standing under section 102 of the LMRDA appears to be a question of first impression. Inasmuch as this case involves an unquestionably overbroad regulation of speech, reference to the overbreadth doctrine of the First Amendment is appropriate. While the principle of standing is rooted in the Article III case or controversy requirement, it also reflects “prudential considerations that limit the challenges courts are willing to hear.” Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed. 2d 786 (1984). The normally stringent requirement of injury in fact has been relaxed, however, in the First Amendment context because: [i]t has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). The leeway allowed by the Court to persons alleging First Amendment violations has been substantial. Thus, attacks on overly broad statutes have been permitted by persons whose speech might not be protected under the First Amendment but who have been punished for that speech under such statutes. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) (“a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the Court”); see Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965). Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the Court to refrain from constitutionally protected speech" }, { "docid": "4028950", "title": "", "text": "that complied with Article Ill’s standing requirements, and because Munson could adequately frame the issues regarding the rights of these third parties. In discussing standing, the Mun-son Court noted the general prudential limitation that plaintiffs generally cannot assert “the legal rights or interests of third parties.” Joseph H. Munson Co., Inc., 467 U.S. at 955, 104 S.Ct. at 2846 (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)) (additional citations omitted). However, the Court concluded that when a plaintiff attempts to challenge a statute as being an overbroad restriction on First Amendment rights, the requirement that an impediment exist to the third party asserting his or her own rights should be relaxed: Even where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. “Litigants, therefore, are permitted to challenge a statute [in such a case] not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Joseph H. Munson Co., Inc., 467 U.S. at 956-57, 104 S.Ct. at 2847 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (involving class action challenge to state statute severely curtailing the types of political activity in which state employees could engage)). Munson thus holds that the prudential standards governing the assertion of third party rights may be relaxed in the First Amendment context, when the Court determines that society’s interest in preventing the chilling of free speech outweighs the normal prudential concerns that prohibit jus tertii claims. The fact that prudential standards" }, { "docid": "4028951", "title": "", "text": "danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. “Litigants, therefore, are permitted to challenge a statute [in such a case] not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Joseph H. Munson Co., Inc., 467 U.S. at 956-57, 104 S.Ct. at 2847 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (involving class action challenge to state statute severely curtailing the types of political activity in which state employees could engage)). Munson thus holds that the prudential standards governing the assertion of third party rights may be relaxed in the First Amendment context, when the Court determines that society’s interest in preventing the chilling of free speech outweighs the normal prudential concerns that prohibit jus tertii claims. The fact that prudential standards may be relaxed in appropriate cases, however, does not mean we must relax them in this case. “In determining whether a litigant should be able to assert third-party rights, a crucial factor is ‘the impact of the litigation on the third-party interests.’ ” Joseph H. Munson Co., Inc., 467 U.S. at 956-57 n. 7, 104 S.Ct. at 2847 (quoting Eisenstadt v. Baird, 405 U.S. 438, 445, 92 S.Ct. 1029, 1034, 31 L.Ed.2d 349 (1972)). To circumvent the rule against third party standing, the plaintiff must also demonstrate more than a mere interference with the third party’s rights. “Given a case or controversy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court.” Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) (emphasis added) (challenging ordinance prohibiting all door-to-door or on-street solicitation of funds for charities failing to use at least 75% of their proceeds" }, { "docid": "3635644", "title": "", "text": "of the challenged law or regulation’s potential chilling effect on protected expression. Secretary of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984) (fund-raising organization allowed to assert First Amendment rights of charities). In Munson, the Supreme Court wrote, “Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to- refrain from constitutionally protected speech or expression.” Id. at 956-57, 104 S.Ct. at 2847 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (book sellers asserting First Amendment rights of book buyers). The stringent requirements for third-party standing are rooted in prudence, rather than the Constitution; accordingly, where circumstances warrant and the Supreme Court allows, we may ease the strictures. Our concern that a law will stifle protected speech justifies such allowance of third-party standing. This Circuit has followed the Supreme Court’s lead in refusing to place a premium on prudence in the First Amendment context. In Penny Saver Publications v. Village of Hazel Crest, 905 F.2d 150 (7th Cir.1990), we allowed a newspaper to assert the rights of its advertisers. The challenged ordinance applied to solicitation — usually not the business of newspapers, but of the advertisers. Following Munson, we put third-party standing concerns aside in the face of a First Amendment challenge and allowed the newspaper to sue in the advertisers’ stead. Penny Saver, 905 F.2d at 154. In the instant case, we elect to do the same. The assurance of a cautionary approach to standing, requiring Shimer to demonstrate legitimacy as a third-party litigant, is outweighed by the potential chilling effect on prison guards’ protected speech. III. Having determined that Shimer has standing to pursue this claim, we turn next to the standard governing the adjudication of constitutional rights within prison. While the chilling effect" }, { "docid": "10074994", "title": "", "text": "other compelling needs of society. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). The leeway allowed by the Court to persons alleging First Amendment violations has been substantial. Thus, attacks on overly broad statutes have been permitted by persons whose speech might not be protected under the First Amendment but who have been punished for that speech under such statutes. Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) (“a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the Court”); see Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120-21, 14 L.Ed.2d 22 (1965). Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916; see Munson, 467 U.S. at 956, 104 S.Ct. at 2847. In Munson, a professional fundraiser asserted a challenge to a Maryland statute that prohibited charitable organizations from paying as expenses for fundraising more than 25 percent of the amount raised. Munson, 467 U.S. at 950, 104 S.Ct. at 2843. Munson complained that it ordinarily charged more than 25 percent as a fee for its professional fundraising activities and that the state had threatened enforcement of the statute against it. No actual enforcement had occurred. Id. at 950-51, 104 S.Ct. at 2843-44. Despite the absence of any injury in fact, the Court permitted Munson to challenge the statute on its face as substantially overbroad. The Court struck down the percentage limitation statute because: [w]here ... a statute imposes a direct restriction on protected First Amendment activity, and where the defect in the statute is that the means chosen to accomplish the state’s objective are too imprecise, so that in all its applications the statute creates" }, { "docid": "7505562", "title": "", "text": "343 (1975). The rule is designed to ensure that the issues before the court are concrete and to prevent unnecessary opinions on constitutional issues. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). However, an exception to the traditional standing rule has been carved out within the context of the First Amendment. Where, as here, a plaintiff claims that a statute on its face is overly broad, the Supreme Court has allowed the plaintiff to assert the rights of third parties “without regard to the ability of the other to assert his own claims and ‘with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’ ” Id. at 957, 104 S.Ct. 2839 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The Court reasoned that [e]ven where a First Amendment challenge could be brought by one actually engaged in protected activity, there is a possibility that, rather than risk punishment for his conduct in challenging the statute, he will refrain from engaging further in the protected activity. Society as a whole then would be the loser. Thus, when there is a danger of chilling free speech, the concern that constitutional adjudication be avoided whenever possible may be outweighed by society’s interest in having the statute challenged. “Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 956-57, 104 S.Ct. 2839 (quoting Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.) Under this so-called “overbreadth doctrine,” a plaintiff need only “demonstrate a substantial risk that application of the provision will lead to the suppression of speech.” Lerman, 232 F.3d at 144. Likewise, “when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit" }, { "docid": "7873501", "title": "", "text": "(1982). [A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “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.” Id. (citations omitted) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). Thus, a plaintiff who has not been prosecuted under a criminal statute does not normally have standing to challenge the statute’s constitutionality. See Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971) (finding that plaintiffs who had neither been prosecuted nor specifically threatened with prosecution did not have standing). Standing requirements to challenge speech restrictions, however, are less strict. “[I]n the First Amendment context, [l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Virginia v. Ameri can Booksellers Assoc., Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 643, 98 L.Ed.2d 782 (1988) (internal quotations omitted); see also Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2846-47, 81 L.Ed.2d 786 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). We conclude that Cheffer has standing to challenge the restrictions placed on her free speech by the Amended Permanent Injunction. B. Neither does the abstention doctrine block Cheffer’s suit. The Supreme Court has directed that federal courts should not intervene in ongoing state proceedings “when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” See Younger v. Harris, 401 U.S. 37," }, { "docid": "2576716", "title": "", "text": "of the two groups, the relationship between litigant and third party in this case does not justify relaxation of the general rule against third-party standing. 3. Dilution of Third Party’s Ability to Protect Rights The third criterion cited by the Powers Court for relaxation of the general rule against third-party standing is whether the rights of the third party will be diluted or infringed if the litigant is not allowed to assert those rights on behalf of the third party. This factor is the central consideration in the grant of third party standing; most cases where the Supreme Court has allowed third-party standing can be justified on this basis. See, e.g., Powers, 499 U.S. at 413-16, 111 S.Ct. at 1372-73 (because jurors face “daunting” barriers to bringing suit for discriminatory exclusion from jury service, criminal defendant has third-party standing to raise equal protection claims on behalf of excluded jurors); Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392-94, 108 S.Ct. 636, 642-43, 98 L.Ed.2d 782 (1988) (bookstores have third-party standing to assert First Amendment rights of adult book buyers in challenging statute prohibiting display of written or visual material harmful to minors because enforcement of statute against bookstores would limit adults’ access to protected materials); Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984) (“ ‘Litigants ... are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’ ” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973))); Craig, 429 U.S. at 195, 97 S.Ct. at 455-56 (beer vendor allowed to raise third-party equal protection rights of 18-21 year-old males because rights of third parties would be “ ‘diluted or adversely affected’ ” by enforcement of statute against vendors); Singleton, 428 U.S. at 116-18, 96 S.Ct. at 2875 (physicians have third-party standing to assert rights" } ]

[ { "docid": "7245536", "title": "", "text": "be awarded from the date of commencement of the action. It also rejected defendant-appellant’s request that interest be awarded on the basis of Mass. G.L. c. 107, § 3, which provides that if “there is no agreement or provision of law for a different rate”, interest shall be calculated at the rate of 6%. The district court properly rejected appellant’s contention that Mass.G.L. c. 107, § 3 should be applied to this case. See Perkins School for the Blind v. Rate Setting Commission, 383 Mass. 825, 835-36, 423 N.E.2d 765 (1981) (Mass.G.L. c. 231 § 6C governs “judgments for pecuniary damages” and thus supercedes Mass.G.L. c. 107 § 3 in situations where judgments have been awarded.) We believe, however, that the proper statute to be applied in this case was the one governing tort actions. The district court first stated that, if Leonard’s breach of fiduciary duty to appellees was a tort, “it is not of a type described in the statute.” Mass.G.L. c. 231 § 6B covers interest to be awarded on judgments for “personal injuries to the plaintiff or for consequential damages, or for damages to property”. It is true that a variety of torts, including breaches of fiduciary duty, are not specifically listed in the statute. Nevertheless, Massachusetts courts have applied the section to govern interest on common law claims of deceit and claims of unfair practices under Mass. G.L. c. 93A. See Patry v. Liberty Mobilhome Sales, Inc., 394 Mass. 270, 273, 475 N.E.2d 392, 394-95 (1985) (Mass.G.L. c. 231 § 6B governs award of interest on M.G.L. c. 93A damages arising out of false representations concerning sale of mobile home lot); Brown v. Gerstein, 17 Mass.App.Ct. 558, 572, 460 N.E.2d 1043, further app.rev. denied, 391 Mass. 1105, 464 N.E.2d 73 (1984) (in action against attorney for knowingly making false representations, the deceit and M.G.L. c. 93A claims “basically sound in tort [and] [consequently interest on any sum recovered should be computed in accordance with G.L. c. 231 § 6B”). Indeed, the general section heading for the statute, “Interest added to damages in tort action”, implies" } ]

[ { "docid": "17835954", "title": "", "text": "Having failed to appeal, Elias was not entitled to claim relief under Rule 60(b)(6) almost one year after his time to appeal had expired. Post-Judgment Interest We will not disturb the district court’s determination that the rate of post-judgment interest under Massachusetts law is 6%. The parties agree that under the version of 28 U.S.C. § 1961 in force on April 23, 1982, when the judgment in this case was entered, state law determined the rate of interest on a money judgment recovered in a district court in a civil case. Post-judgment interest under Massachusetts law is governed by Mass.Gen.Laws Ann., ch. 235, § 8 (West Supp.1983), which provides that “every judgment for the payment of money shall bear interest from the day of its entry,” but does not fix the rate. Elias contends that the 12% rate prescribed by the 1982 amendment to chapter 231, section 6B should apply to the entire period from commencement of the action until the judgment is satisfied. We agree with the district court, however, that chapter 231, section 6B governs only the rate of prejudgment interest. See Charles D. Bonanno Linen Service, Inc. v. McCarthy, 550 F.Supp. 231, 248 (D.Mass.1982), aff'd in part, rev’d in part, 708 F.2d 1 (1st Cir.), cert. denied, — U.S. -, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983). As Judge Keeton observed in Bonanno, chapter 231, section 6B directs the clerk of court to add interest to the amount of damages at the time the judgment is entered; the statute does not speak to post-judgment interest. Id. at 248 n. 3. Absent any explicit statutory provision setting the rate of interest for the post-judgment period, the district court properly applied the legal rate of interest for debts in general, fixed at 6% by Mass. Gen.Laws, ch. 107, § 3. See Rockland-Atlas National Bank of Boston v. Murphy, 329 Mass. at 761, 110 N.E.2d at 642. Affirmed. . Chapter 231, section 6B, as amended, provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal" }, { "docid": "22188823", "title": "", "text": "* * * * * For an employer in the private sector because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification. Mass.Gen.L. ch. 151B, § 4(1B). Redress for a violation of § 4(1B) may include, \"but [is] not limited to, hiring, reinstatement or upgrading of employees, with or without back pay... Mass.Gen.L. ch. 151B, § 5. Although interest is not specifically mentioned as a designated remedy, a different provision of Massachusetts law stipulates that: In any action ... for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve percent per annum from the date of commencement of the action.... Mass.Gen.L. ch. 231, § 6B. . The district court ruled that plaintiff, although entitled to the same damages under both federal and state statutes, could collect them but once.' And the district court, in trimming the verdict, required the remittitur to be made across the board. Freeman does not contest either of these rulings. . In computing interest under ch. 15 IB, MCAD has customarily calculated interest from the date of the complaint, see Franklin Publishing Co. v. MCAD, 25 Mass.App. 974, 519 N.E.2d 798, 800 (1988), and has used the 12% rate made applicable to personal injury actions by Mass. Gen.L. ch. 231, § 6B. See New York and Massachusetts Motor Service, 517 N.E.2d at 1280; College-Town, 508 N.E.2d at 595. In Conway II, 523 N.E.2d at 258 & n. 7, the SJC observed that interest was awarded in these cases at 12% as an appropriate exercise of agency discretion, and declined to offer an advisory opinion as to how courts might best calculate interest on damages assessed in pursuance of ch. 151B, § 9. . Appellee’s motion sought to recover various other" }, { "docid": "12631211", "title": "", "text": "and interest thereon from the date of conversion. See Jackson v. Innes, 231 Mass. 558, 121 N.E. 489, 491 (1919); Hall v. Paine, 224 Mass. 62, 77, 112 N.E. 153 (1916). Interest is awarded by law so that a person wrongfully deprived of the use of property is properly compensated for the attendant delay. Trustees of Boston and Maine Corp. v. Massachusetts Bay Transp. Authority, 367 Mass. 57, 65, 323 N.E.2d 870, 875 (1975); Lawyers’ Mortgage Inv. Corp. of Boston v. Paramount Laundries, 287 Mass. 357, 191 N.E. 398 (1934). Mass.Gen. Laws.Ann. ch. 231 § 6B governs the award of prejudgment interest in tort actions. See Sugarman v. Sugarman, 797 F.2d 3,14 (1st Cir.1986) (“[T]he general section heading for the statute [M.G.L.A. ch. 231 § 6B], ‘Interest added to damages in tort actions,’ implies that all tort actions are covered.”). The statute provides that: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to the property, there shall be added by the clerk of the court to the amount of damages interest thereon at the rate of twelve percent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. M.G.L.A. ch. 231 § 6B. Accordingly, interest at a rate of twelve percent a year is added to compensatory damages from the date the action commenced until the date of judgment. However, where a loss is not incurred until after an action is commenced, prejudgment interest should be awarded from the date the loss was incurred “in order to avoid giving a party an undeserved windfall.” See St. Paul Surplus Lines, Ins. Co. v. Feingold & Feingold Ins. Agency, Inc., 427 Mass. 372, 377, 693 N.E.2d 669, 673 (1998) (prejudgment interest from time insurer actually made payments as a result of insurance agency’s negligent and intentional misconduct). GE is entitled to be made whole for the" }, { "docid": "16718817", "title": "", "text": "ulent transfer actions. Many have applied the state law interest rate for determining prejudgment interest on fraudulent transfer judgments arising under § 544(b). See, e.g., Von Gunten v. Neilson (In re Slatkin), 243 Fed.Appx. 255, 259 (9th Cir.2007) (citing Acequia, Inc. v. Clinton (In re Acequia, Inc.), 34 F.3d 800, 818 n. 4 (9th Cir.1994)) (applying state law to determine prejudgment interest in case arising under § 544(b)); Geltzer v. Artists Mktg. Corp. (In re The Cassandra Group), 338 B.R. 583, 600 (Bankr.S.D.N.Y.2006) (concluding that because avoidance of a fraudulent transfer under § 544(b) is predicated on state substantive law, state law determines rate of prejudgment interest); Geremia v. North Atl. Fishing, Inc. (In re Reposa), 186 B.R. 775, 777 (Bankr.D.R.I.1995) (awarding prejudgment interest at rate provided by state law and postjudgment interest at federal rate); Stephen Douglas, 174 B.R. at 22. Other courts, however, have concluded that federal law is the applicable law for determining prejudgment interest on a fraudulent transfer judgment arising under § 544(b). See, e.g., CNB Int’l, Inc. v. Kelleher (In re CNB Int’l, Inc.), 393 B.R. 306, 336 (Bankr.W.D.N.Y.2008) (applying federal interest rate because the right to recover prejudgment interest on a fraudulent conveyance arises from § 550); Brown v. Phillips (In re Phillips), 379 B.R. 765, 789 (Bankr.N.D.Ill.2007); Harlin, 325 B.R. at 192-93; Floyd v. Dunson (In re Ramirez Rodriguez), 209 B.R. 424, 434 (Bankr.S.D.Tex.1997) (awarding interest on the entire fraudulent transfer judgment arising under §§ 544(b), 550 and 548 at the federal rate). Where state law provides the substantive basis for a judgment, the Panel holds that state law should govern the determination of prejudgment interest. This action was brought concurrently under federal (§§ 554(b) and 550) and state law (Massachusetts fraudulent conveyance statute). However, § 544(b) is the provision that allows the trustee in the instant case to assert his Massachusetts fraudulent transfer claim and § 550 simply identifies the entities from whom recovery may be made. Therefore, neither § 544(b) nor § 550 is the substantive basis for the judgment; rather, the substantive basis is the Massachusetts fraudulent conveyance statute. Therefore," }, { "docid": "14592239", "title": "", "text": "Supp. New Albertson’s, Inc.’s Mot. Alter, Amend Correct J. (“New Albertson’s Mem. Amend”), ECF No. 809. Given the structure of the jury verdict, Thomas & Betts requests prejudgment interest from Alfa Laval and the Charter School. Thomas & Betts Mem. Amend 1. Similarly, New Albertson’s requests pre judgment interest from Thomas & Betts. New Albertson’s Mot.' Alter 2-3; New Al-bertson’s Mem. Amend 2-4. These requests raise three issues: whether awarding prejudgment interest is appropriate in a Chapter 21E action; whether Thomas & Betts delayed the proceedings such that, even if authorized by law, the Court should exercise its discretion and reduce any award to it; and what the correct date to begin the accrual of interest. These will be discussed in turn. A. Statutory Authority for Awarding Prejudgment Interest In a diversity lawsuit in federal court, the award of prejudgment interest is a question of substantive law governed by state law—in this case, Massachusetts law. See Fratus v. Republic W. Ins. Co., 147 F.3d 25, 30 (1st Cir.1998). Section 6B of Massachusetts General Laws Chapter 231 (“Chapter 231”) provides that, in tort actions, following judgment: [Tjhere shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231 § 6B. Section 6C includes a similar provision for contract actions. See id. § 6C. More generally, Section 6H of Chapter 231 provides that: In any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, there shall be added by the clerk of court'to the amount of damages interest thereon at the rate provided by section six B to be determined from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Id. § 6H. In opposing Thomas & Betts’s request for" }, { "docid": "21556648", "title": "", "text": "awards for tortious conduct are governed by Mass.Gen. Laws ch. 231, § 6B: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damages to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. . Although the district court later reversed itself, it initially held that, under state law, prejudgment interest was mandated on compensatory damage award, though not on the punitive award because punitive damages were not available under state law. Upon review, we find that Wojtkowski v. Cade, 725 F.2d 127, would not have permitted such a result. The fact that the claims under the MCRA and the LMRDA were identical does not permit us to conclude that prejudgment interest was mandatory." }, { "docid": "1297838", "title": "", "text": "court overruled the objection, concluding that prepetition prejudgment interest was not “unmatured” under the Bankruptcy Code because the “the prepetition, prejudgment portion would have been due and payable as of the Petition Date.” Id. at 482-83. But unlike the circumstances here, the trial court had entered a judgment that included interest. In In re Lamarre, 269 B.R. 266 (Bankr. D.Mass.2001), a state court breach of contract action was filed against a defendant who subsequently filed a chapter 7 bankruptcy petition before a judgment was entered in the state court action. Id. at 266-67. The state court plaintiffs then commenced a denial of discharge adversary proceeding to fix and liquidate their claims and obtain a determination that their claims were nondischargeable. Id. The bankruptcy court awarded judgment in the claimants’ favor including prejudgment interest at the rate of 12% per annum pursuant to Massachusetts General Laws ch. 231 § 6C, which provides: “In all actions based on contractual obligations, upon a verdict, finding, or order for judgment or pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve percent per annum from the date of the breach or demand_” Id. at 267. The chapter 7 trustee argued that all prejudgment interest was “unmatured” and therefore should be disallowed. Id. Following the reasoning of United States Lines, the court concluded that “once the amount of interest that accrued became fixed and liquidated [during the bankruptcy], only that portion that accrued on or before the petition date can be allowed.” Id. at 268. Prepetition prejudgment interest was awarded to claimants by the bankruptcy court under applicable Massachusetts state law. Id. at 270. The holdings of United States Lines and Lamarre do not support Hodel’s argument that his claim should be allowed including statutory interest pursuant to N.Y. CPLR § 5001(a). In both cases, the claimants obtained judgments from a state or bankruptcy court that included an award of interest — here, Hodel asserts an entitlement to prepetition prejudgment interest without a verdict, judgment or" }, { "docid": "16718818", "title": "", "text": "re CNB Int’l, Inc.), 393 B.R. 306, 336 (Bankr.W.D.N.Y.2008) (applying federal interest rate because the right to recover prejudgment interest on a fraudulent conveyance arises from § 550); Brown v. Phillips (In re Phillips), 379 B.R. 765, 789 (Bankr.N.D.Ill.2007); Harlin, 325 B.R. at 192-93; Floyd v. Dunson (In re Ramirez Rodriguez), 209 B.R. 424, 434 (Bankr.S.D.Tex.1997) (awarding interest on the entire fraudulent transfer judgment arising under §§ 544(b), 550 and 548 at the federal rate). Where state law provides the substantive basis for a judgment, the Panel holds that state law should govern the determination of prejudgment interest. This action was brought concurrently under federal (§§ 554(b) and 550) and state law (Massachusetts fraudulent conveyance statute). However, § 544(b) is the provision that allows the trustee in the instant case to assert his Massachusetts fraudulent transfer claim and § 550 simply identifies the entities from whom recovery may be made. Therefore, neither § 544(b) nor § 550 is the substantive basis for the judgment; rather, the substantive basis is the Massachusetts fraudulent conveyance statute. Therefore, as state law is the substantive law for the fraudulent transfer judgment, the bankruptcy court should have looked to state law to determine the applicable rate of prejudgment interest. Mass. Gen. Laws ch. 231, § 6B, governs the award of prejudgment interest in tort actions. See Gen. Elec. Co. Bus. Lighting Group v. Halmar Distribs., Inc. (In re Halmar Distribs., Inc.), 232 B.R. 18 (Bankr.D.Mass.1999) (citing Sugarman v. Sugarman, 797 F.2d 3, 14 (1st Cir.1986)). The statute provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of the court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231, § 6B." }, { "docid": "21556647", "title": "", "text": "it is possible that Doty did not follow all the procedures specified by the Union, \"[a] concentrated effort to comply with the spirit of intraunion remedies available,\" Woods v. Local 613, International Brotherhood of Electrical Workers, 404 F.Supp. at 115, will satisfy § 411(a)(4)'s exhaustion' requirement. See Detroy v. American Guild of Variety Artists, 286 F.2d 75, 81 (2d Cir.1961); Fulton Lodge No. 2, Int'l Ass’n of Machinists & Aerospace Workers v. Nix, 415 F.2d 212, 216 (5th Cir.1969). . Moreover, upon review, we agree with the district court’s conclusion that the punitive damage award was not excessive. In this case, the jury was entitled to conclude that Doty was excluded from some type of union activities for three years, and was ultimately removed from his position as union steward because of his inability to secure a transfer. We note also that, where a jury has found suppression of a union member’s efforts to expose corrupt union practices, the award of punitive damages may help to deter similar union conduct. . Under Massachusetts law, damage awards for tortious conduct are governed by Mass.Gen. Laws ch. 231, § 6B: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damages to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. . Although the district court later reversed itself, it initially held that, under state law, prejudgment interest was mandated on compensatory damage award, though not on the punitive award because punitive damages were not available under state law. Upon review, we find that Wojtkowski v. Cade, 725 F.2d 127, would not have permitted such a result. The fact that the claims under the MCRA and the LMRDA were identical does not permit us" }, { "docid": "1297837", "title": "", "text": "plaintiff and awarding discretionary award of pre-verdict interest at the rate of 9% per annum). At least two bankruptcy courts have considered issues germane to the matter before the Court. In United States Lines, 199 B.R. at 476-83, Judge Blackshear was asked to determine whether a claim should be allowed in an amount that included prepetition prejudgment interest after a state court jury verdict for wrongful death and physical pain and suffering. Id. at 479. After the debtor filed for bankruptcy the court modified the automatic stay to allow two state court personal injury actions to proceed to final judgment. Id. at 478. The state court entered judgment in favor of one of the plaintiffs in the amount of $1,641,500, together with interest from the date of the verdict. Id. at 479. The judgment was subsequently modified to provide interest from the date of the plaintiffs death. Id. The debtor objected to the award of prepetition prejudgment interest, arguing that the interest was “unmatured interest” not permitted by section 502(b)(2). Id. at 482. The bankruptcy court overruled the objection, concluding that prepetition prejudgment interest was not “unmatured” under the Bankruptcy Code because the “the prepetition, prejudgment portion would have been due and payable as of the Petition Date.” Id. at 482-83. But unlike the circumstances here, the trial court had entered a judgment that included interest. In In re Lamarre, 269 B.R. 266 (Bankr. D.Mass.2001), a state court breach of contract action was filed against a defendant who subsequently filed a chapter 7 bankruptcy petition before a judgment was entered in the state court action. Id. at 266-67. The state court plaintiffs then commenced a denial of discharge adversary proceeding to fix and liquidate their claims and obtain a determination that their claims were nondischargeable. Id. The bankruptcy court awarded judgment in the claimants’ favor including prejudgment interest at the rate of 12% per annum pursuant to Massachusetts General Laws ch. 231 § 6C, which provides: “In all actions based on contractual obligations, upon a verdict, finding, or order for judgment or pecuniary damages, interest shall be added by the" }, { "docid": "12631212", "title": "", "text": "damages, or for damage to the property, there shall be added by the clerk of the court to the amount of damages interest thereon at the rate of twelve percent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. M.G.L.A. ch. 231 § 6B. Accordingly, interest at a rate of twelve percent a year is added to compensatory damages from the date the action commenced until the date of judgment. However, where a loss is not incurred until after an action is commenced, prejudgment interest should be awarded from the date the loss was incurred “in order to avoid giving a party an undeserved windfall.” See St. Paul Surplus Lines, Ins. Co. v. Feingold & Feingold Ins. Agency, Inc., 427 Mass. 372, 377, 693 N.E.2d 669, 673 (1998) (prejudgment interest from time insurer actually made payments as a result of insurance agency’s negligent and intentional misconduct). GE is entitled to be made whole for the Bank’s conversion of its money. As a result, this Court will order that the Bank must pay GE $33,520 plus prejudgment interest at twelve percent per year, pursuant to M.G.L.A. ch. 231 § 6B. Interest will be applied from the date of the conversion, December 16, 1992, until the date of the judgment herein. B. Identification Of Ralar Wiring Devices Subject to GE’s Senior Security Interest In Halmar II, the First Circuit Court of Appeals ruled that GE held a valid security interest in all wiring devices that it sold to Ralar. Halmar II, at 128. Further, the court held that, on and after October 13, 1989, the Bank converted the proceeds of goods sold by GE to the Debtors, because GE revoked its acquiescence to the Bank’s revolving credit arrangements with the Debtors by its notice of October 13, 1989, objecting to the Bank’s collection of the proceeds and demanding payment of those proceeds in which it held a security interest. Consequently, GE became entitled to any proceeds from the sale of Ra-lar’s wiring" }, { "docid": "17835955", "title": "", "text": "6B governs only the rate of prejudgment interest. See Charles D. Bonanno Linen Service, Inc. v. McCarthy, 550 F.Supp. 231, 248 (D.Mass.1982), aff'd in part, rev’d in part, 708 F.2d 1 (1st Cir.), cert. denied, — U.S. -, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983). As Judge Keeton observed in Bonanno, chapter 231, section 6B directs the clerk of court to add interest to the amount of damages at the time the judgment is entered; the statute does not speak to post-judgment interest. Id. at 248 n. 3. Absent any explicit statutory provision setting the rate of interest for the post-judgment period, the district court properly applied the legal rate of interest for debts in general, fixed at 6% by Mass. Gen.Laws, ch. 107, § 3. See Rockland-Atlas National Bank of Boston v. Murphy, 329 Mass. at 761, 110 N.E.2d at 642. Affirmed. . Chapter 231, section 6B, as amended, provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass.Gen.Laws Ann., ch. 231, § 6B (West Supp.1983). . \"A motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.\" Fed.R.Civ.P. 59(e). . \"Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.” Fed.R.Civ.P. 60(a). . “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" }, { "docid": "14592240", "title": "", "text": "231 (“Chapter 231”) provides that, in tort actions, following judgment: [Tjhere shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231 § 6B. Section 6C includes a similar provision for contract actions. See id. § 6C. More generally, Section 6H of Chapter 231 provides that: In any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, there shall be added by the clerk of court'to the amount of damages interest thereon at the rate provided by section six B to be determined from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Id. § 6H. In opposing Thomas & Betts’s request for 'prejudgment interest, Alfa Laval and the Charter School (the “opposing parties”) argue that prejudgment interest ought not be awarded in Chapter 21E actions. Boston Renaissance Charter School, Inc.’s Mem. Opp’n Thomas & Betts’ Mot. Alter Amend J. (“Charter School Opp’n”) 3, ECF No. 836; Alfa Laval Inc.’s Opp’n Thomas & Betts Corp.’s Mot. Amend J. (“Alfa Laval Opp’n”) 3, ECF No. 848. In other words, they argue that Chapter 231 does not apply to Chapter 21E actions. While the opposing parties are correct that Chapter 21E does not include language specifically addressing the award of prejudgment interest, and that speaking of “damages” in the Chapter 21E context is arguably inaccurate, the Supreme Judicial Court has, albeit without explanation, applied Chapter 231’s framework to a Chapter 21E action. See Bank v. Thermo Elemental, Inc., 451 Mass. 638, 662, 888 N.E.2d 897 (2008), The Court must not second-guess that court on questions of Massachusetts law, see Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir.2008) (in a diversity-case, “the federal court-" }, { "docid": "16718819", "title": "", "text": "as state law is the substantive law for the fraudulent transfer judgment, the bankruptcy court should have looked to state law to determine the applicable rate of prejudgment interest. Mass. Gen. Laws ch. 231, § 6B, governs the award of prejudgment interest in tort actions. See Gen. Elec. Co. Bus. Lighting Group v. Halmar Distribs., Inc. (In re Halmar Distribs., Inc.), 232 B.R. 18 (Bankr.D.Mass.1999) (citing Sugarman v. Sugarman, 797 F.2d 3, 14 (1st Cir.1986)). The statute provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of the court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen. Laws ch. 231, § 6B. Based on the foregoing, the bankruptcy court should have awarded prejudgment interest at the Massachusetts rate of 12% from the date on which the Trustee sued the Appellant. CONCLUSION For reasons set forth above, the Judgment is AFFIRMED IN PART and VACATED IN PART. The Judgment is VACATED to the extent it awarded pre judgment interest at the federal statutory rate, and REMANDED with instructions to recalculate prejudgment interest at the applicable rate provided by Massachusetts state law. . The Appellant has not raised any issues regarding the merits of the fraudulent transfer action and, therefore, they are waived on appeal. See Tower v. Leslie-Brown, 326 F.3d 290, 299 (1st Cir.2003) (\"[W]e have made it abundantly clear that failure to brief an argument does, in fact, constitute waiver for purposes of appeal.”); Ortiz v. Gaston Co. Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir.2002). . The Debtor’s case was commenced prior to the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA”), Pub.L. 109-8, Title III, § 302, 119" }, { "docid": "1900319", "title": "", "text": "v. County of Prince William, 89 F.3d 169 (4th Cir.1996), another case on which Liberty Mutual relies, the court found the $500,000 award for emotional distress to be unsupported where the plaintiff remained employed in her job as a police officer, “continued] to perform her duties with no noticeable diminution in performance,” “ha[d] no observable injuries or physical ailments,” and had sought no help — professional or otherwise — to deal with her asserted emotional difficulties. Id. at 171. In sum, we find our assessment in a prior case equally apt here: “Given this precedent, the deferential standard of review, and ‘the esoteric nature of damages for emotional distress,’ the award in this case, while high, is not so high that we should disturb it.” McDonough, 452 F.3d at 22 (citation omitted). VI. Liberty Mutual contends that the district court erred in assessing interest on the damages award at the prejudgment rate, rather than at the lower post-judgment rate, for the time period between the original entry of judgment on the jury verdict, on May 9, 2006, and the date of the Second Amended Judgment, April 11, 2007. We review this contention de novo. R.I. Charities Trust v. Engelhard Corp., 267 F.3d 3, 5 (1st Cir.2001). It is well established that prejudgment interest is a substantive remedy governed by state law when state-law claims are brought in federal court, Conway, 825 F.2d at 602; Blockel, 337 F.3d at 29, while post-judgment interest, even on state-law claims, is governed by federal law, Cummings, 265 F.3d at 68. Liberty Mutual does not contest the district court’s decision to adopt Massachusetts law for the prejudgment interest rate. It challenges only the period of time for which the state’s 12% rate is applicable. Prejudgment interest in Massachusetts “ordinarily applies to that period from the date of commencement [of suit] to the date on which judgment is entered.” Foley v. City of Lowell, Mass., 948 F.2d 10, 17 (1st Cir.1991) (citation and internal quotation marks omitted) (substitution in original); Mass. Gen. Laws Ann. ch. 231, § 6B (stating that “there shall be added by the" }, { "docid": "23144163", "title": "", "text": "damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen.Laws Ann. ch. 231 § 6C (West 1985) provides: In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action. . In School Comm. of Newton v. Labor Relations Comm’n, the Supreme Judicial Court rejected the notion that Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 369 N.E.2d 1018 (1977), cited by Electro Switch, controls the outcome of any inquiry into interest available under statutes similar to the one in question here. In Broadhurst, the Massachusetts court disallowed interest awarded pursuant to a Massachusetts statute providing for payment of overdue unemployment benefits. Id. at 725, 369 N.E.2d at 1023. The court denied the interest award on the grounds that the detailed statutory scheme did not provide for interest and that the state could only be held to have waived its sovereign immunity and established rights to recovery to the extent provided in the statute. Id. at 726-27, 369 N.E.2d at 1022-23. In distinguishing Broadhurst, the Supreme Judicial Court noted that the broad labor relations statute, delegating considerable discretion to the Labor Relations Commission to fashion remedies for labor law violations, was not controlled in its interpretation by a statute prescribing detailed proceedings and remedies as outlined in the unemployment security" }, { "docid": "23477790", "title": "", "text": "correct. We elect to eschew the extra capital letter. Lamothe is not a party to the proceedings before us, his attempted appeal having previously been defaulted and dismissed. There is a suggestion that he has declared bankruptcy. . This evidence was admitted only against the City, and the district court properly instructed the jury to this effect. . The defendant, essaying a narrow reading of Bordanaro, tells us that if such evidence is admissible at all, it must, as in Bordanaro itself, arise directly out of the principal event. We reject so crabbed a reading of the law. . Reiter based his opinion on a review of forty-one citizen complaints filed with the Department during the period 1978-1987, including Finnegan’s complaint. The City stipulated below to Reiter’s credentials. On appeal, the City does not challenge the admission of his testimony. . The rule provides in pertinent part that, ‘‘[a]l-though relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Fed.R.Evid. 403. . The compensatory damage award ran jointly and severally against the City and Lamothe. In addition, the jury found against Lamothe for common law assault and battery, and awarded an additional ¶5,000 in punitive damages against him. This aspect of the award need not concern us, as Lamothe’s appeal was never perfected. See supra note 1. . The applicable state statute provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action.... Mass.Gen.L. ch. 231, § 6B. . At any rate, the City did not argue below that the end date for the prejudgment interest calculation should be altered to offset delays caused by plaintiff, nor does it argue on appeal that the plaintiff was responsible for any such procrastination. Thus," }, { "docid": "23477791", "title": "", "text": "jointly and severally against the City and Lamothe. In addition, the jury found against Lamothe for common law assault and battery, and awarded an additional ¶5,000 in punitive damages against him. This aspect of the award need not concern us, as Lamothe’s appeal was never perfected. See supra note 1. . The applicable state statute provides: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action.... Mass.Gen.L. ch. 231, § 6B. . At any rate, the City did not argue below that the end date for the prejudgment interest calculation should be altered to offset delays caused by plaintiff, nor does it argue on appeal that the plaintiff was responsible for any such procrastination. Thus, the point is, at best, of purely academic interest. See, e.g., Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.1990) (issues not raised below are waived); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.) (issues not briefed or argued on appeal are deemed abandoned), cert. denied, 494 U.S. 1082, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990). . To cite but one example, the district court was directed by this court on October 25, 1989 \"to enter a new final judgment embodying the amount of damages plus prejudgment interest awarded.” Notwithstanding this express direction, the district court did not enter such a judgment until more than thirteen additional months had elapsed. .Because the plaintiff is entitled to prejudgment interest on the damage award from November 27, 1985 until final judgment was entered on December 6, 1990, postjudgment interest on damages (originally specified by the district court to start on June 6, 1989) must be deferred to dovetail with the end of the prejudgment interest period. . On appeal, neither party has complained about" }, { "docid": "23144162", "title": "", "text": "to those supporting exclusion of Mr. Olsson’s statement. Ms. Conway contends that Electro Switch has waived its objection to the admission of Mr. Meissner’s statement because it was not included in the motion in limine and counsel for Electro Switch did not voice objection to the district judge’s ruling allowing the statements into evidence. Under the best of circumstances, counsel must exercise caution in relying exclusively upon rulings made in connection with pretrial motions in limine as the basis for preserving claims of error in the admission and exclusion of evidence. Although Electro Switch may or may not properly have protected the record in this instance, we need not decide the point. Assuming arguendo that the objections were properly preserved, they were, for the reasons recounted in the text, without merit. . Mass.Gen.Laws Ann. ch. 231 § 6B (West 1985) states: In any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law. Mass. Gen.Laws Ann. ch. 231 § 6C (West 1985) provides: In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action. . In School Comm. of Newton v. Labor Relations" }, { "docid": "1900320", "title": "", "text": "9, 2006, and the date of the Second Amended Judgment, April 11, 2007. We review this contention de novo. R.I. Charities Trust v. Engelhard Corp., 267 F.3d 3, 5 (1st Cir.2001). It is well established that prejudgment interest is a substantive remedy governed by state law when state-law claims are brought in federal court, Conway, 825 F.2d at 602; Blockel, 337 F.3d at 29, while post-judgment interest, even on state-law claims, is governed by federal law, Cummings, 265 F.3d at 68. Liberty Mutual does not contest the district court’s decision to adopt Massachusetts law for the prejudgment interest rate. It challenges only the period of time for which the state’s 12% rate is applicable. Prejudgment interest in Massachusetts “ordinarily applies to that period from the date of commencement [of suit] to the date on which judgment is entered.” Foley v. City of Lowell, Mass., 948 F.2d 10, 17 (1st Cir.1991) (citation and internal quotation marks omitted) (substitution in original); Mass. Gen. Laws Ann. ch. 231, § 6B (stating that “there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action”). In asserting that the end date for calculating Massachusetts prejudgment interest is the date of the original entry of judgment, Liberty Mutual relies on cases holding that, under federal law, post-judgment interest ordinarily begins to accrue at that time. See, e.g., Cordero v. DeJesus-Mendez, 922 F.2d 11, 17 (1st Cir.1990) (holding that, “[w]here an original judgment is upheld for the most part but modified on remand, post-judgment interest should accrue from the date of the first judgment”); Marshall v. Perez-Arzuaga, 866 F.2d 521, 524 (1st Cir. 1989) (holding that equity supports “accruing post-judgment interest from entry of a judgment on a verdict rather than from the date a motion for a judgment N.O.V. is denied”). However, a successful plaintiffs right to a particular remedy under federal law does not trump his right to a more advantageous remedy under state law. When federal and state claims overlap, the plaintiff" } ]

[ { "docid": "22347397", "title": "", "text": "involve Mr. Mosalle[m], so what I say about Mr. Mosalle[m] is not the entire excuse, but it’s part of the picture and an important part of the picture. The district court then imposed a non-Guidelines sentence of one year of home confinement and five years’ probation. It also ordered Rattoballi to pay $155,000 in restitution, while commenting that Ratto-balli would need to work in order to be able to pay such a significant amount in restitution. The district court never addressed the issue of a fine and did not impose one; nor did it impose the mandatory special assessment of $200. Shortly after the hearing, the court issued its written judgment. The judgment did not contain the district court’s reasons for imposing a non-Guidelines sentence below the advisory Guidelines range; it stated only that “[t]he court deems the Guidelines to be advisory and imposes sentence notwithstanding it’s [sic] determinations.” The court did include the $200 mandatory special assessment in the written judgment, but did not impose a fine, citing Rattoballi’s “inability to pay.” The government preserved its objections and filed a timely notice of appeal. DISCUSSION We review a district court’s sentencing decisions for reasonableness. United States v. Booker, 543 U.S. 220, 260-61, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Crosby, 397 F.3d 103, 114-15 (2d Cir.2005). Reasonableness review has two components: (1) procedural reasonableness, whereby we consider such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a) ; and (2) substantive reasonableness, whereby we consider whether the length of the sentence is reasonable in light of the factors outlined in 18 U.S.C. § 3553(a). Crosby, 397 F.3d at 113-15. After Booker, we still review a district court’s interpretation of the Sentencing Guidelines de novo and evaluate its findings of fact under the clearly erroneous standard. United States v. Selioutsky, 409 F.3d 114, 119 (2d Cir.2005). The government lodges three separate claims of error" } ]

[ { "docid": "22181148", "title": "", "text": "from representation in the appeal of a criminal case is met with a motion for summary affirmance by the Government. In the Torres case, we granted both motions as to defendant Lopez: We grant counsel’s Anders motion and the government’s motion for summary affirmance because we believe that Lopez’s case presents no nonfrivolous issues for appeal. Counsel’s Anders brief addresses Lopez’s plea allocution and sentence, as well as the argument that § 1959 violates the Commerce Clause. Counsel correctly concludes that none of these events present any non-frivolous issues for appeal. Id. In 2009, we granted 160 motions for summary affirmance adjunct to orders granting Anders motions by counsel to be relieved from representation of appellants in criminal appeals. Although no Anders motions is before us in this case, these statistics demonstrate that a fair number of frivolous appeals are filed in this Court. Moreover, the statistics are relevant because we analyze the frivolous issues by the same standards that we apply in deciding such motions and responsive motions for summary affirmance. II. Of the Sentencing Process We review sentences for abuse of discretion, a standard that “incorporates de novo review of questions of law (including interpretation of the [Sentencing] Guidelines) and clear-error review of questions of fact.” United States v. Legros, 529 F.3d 470, 474 (2d Cir.2008). In applying the abuse of discretion standard in sentencing appeals, we are constrained to review for reasonableness. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). It is by now familiar doctrine that “[t]his form of appel late scrutiny encompasses two components: procedural review and substantive review.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). Upon substantive review, a trial court’s sentencing decision will be classified as error only if it “cannot be located within the range of permissible decisions.” Id. (internal quotation marks omitted). The length of the sentence imposed is what is examined on substantive review. United States v. Villafuerte, 502 F.3d 204, 206 (2d Cir.2007). Substantive reasonableness review can take place any time following procedural reasonableness review, including" }, { "docid": "22108648", "title": "", "text": "Growden timely appealed, contending the district court abused its discretion by imposing a substantively unreasonable sentence, which is greater than necessary to achieve the purposes of sentencing. See 18 U.S.C. § 3553(a). Specifically, Growden asserts the district court unreasonably varied upwards in light of the fact Growden is a first-time offender; he had not engaged in any new criminal conduct while on supervised release; his failure to comply with the conditions of supervised release was a factor already contemplated by the guidelines; and the emails that formed the basis of the violation were sent to Growden’s family and friends, and did not amount to serious attempts to obtain financing for his ventures. We disagree. “We review a district court’s sentence on revocation of supervised release for ... substantive reasonableness under ‘the same reasonableness standard that applies to initial sentencing proceedings.’ ” United States v. Benton, 627 F.3d 1051, 1055 (8th Cir.2010) (quoting United States v. Merrival, 521 F.3d 889, 890 (8th Cir.2008)). Accordingly, we review the substantive reasonableness of Growden’s sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also United States v. Thunder, 553 F.3d 605, 607 (8th Cir.2009). “ ‘A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors.’ ” United States v. Kreitinger, 576 F.3d 500, 503 (8th Cir.2009) (quoting United States v. Miner, 544 F.3d 930, 932 (8th Cir.2008)). While Growden’s sentence is greater than the advisory guidelines range, we conclude the district court did not abuse its discretion, and the sentence is not substantively unreasonable. The district court gave appropriate consideration to the 18 U.S.C. § 3553(a) factors, sufficiently explained its reasoning for the variance, and imposed a sentence within the statutory limits. See Benton, 627 F.3d at 1055-56. The court voiced well-founded concerns during the second revocation hearing over the number and seriousness of Growden’s" }, { "docid": "8665026", "title": "", "text": "in support of his client’s appeal,” and “defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir.1993). In the two appeals before us, neither counsel has satisfactorily addressed the reasonableness of his or her client’s sentence. “We review sentences for reasonableness, which has both substantive and procedural dimensions.” United States v. Sindima, 488 F.3d 81, 84 (2d Cir.2007) (internal citations omitted); see also United States v. Williams, 475 F.3d 468, 474 (2d Cir.2007) (holding “that we review a sentence for reasonableness even after a District Court declines to resentence pursuant to Crosby”). The Anders brief submitted by Whitley’s counsel merely recites the legal standard for procedural reasonableness and describes the sentencing process. Counsel does not analyze the procedural reasonableness of Whitley’s sentence, and never mentions substantive reasonableness. Similarly, the brief submitted by Artis’s counsel identifies certain procedural errors that could render a sentence unreasonable, states conclusorily that “the record reveals that the district court did not commit any” such errors, and then describes certain determinations made by the district court without analyzing the reasonableness of these determinations or the sentence as a whole. A “brief conclusory statement does not fulfill counsel’s obligations under Anders, which requires that counsel conduct a ‘conscientious examination’ of possible grounds for appeal.” United States v. Zuluaga, 981 F.2d 74, 75 (2d Cir.1992) (per curiam) (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396). In addition, the failure to analyze reasonableness leaves us uncertain as to whether counsel diligently searched the record for any and all arguably meritorious claims in support of their clients’ appeals. “Counsel’s failure to submit a proper Anders brief works two harms. First, it fails to assist an appellate court ... in its review of a motion to affirm summarily a district court order or judgment.” Id. (internal quotation marks omitted). After all, “we may not independently determine the merits of an appeal, absent a properly prepared Anders brief.” Burnett, 989 F.2d at 104. “Second, and more importantly, [failure to submit a proper Anders brief] amounts to a" }, { "docid": "22841960", "title": "", "text": "As Curry challenges only the extent of the district court’s downward departure, we lack jurisdiction to consider his argument on appeal. Curry next argues that his sentence was unreasonable, because it should have been shorter in duration. We review sentences imposed by the district court for reasonableness. United States v. Vowell, 516 F.3d 503, 509 (6th Cir.2008). Reasonableness review has both a substantive and a procedural component. Gall v. United States, — U.S.-, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); Vowell, 516 F.3d at 509. Thus, when reviewing a district court’s sentencing determination, we “first ensure that the district court committed no significant procedural error, such as ... failing to consider the [18 U.S.C.] § 3553(a) factors ... or failing to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 597. “Assuming that the district court’s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id. For a sentence to be substantively reasonable, “it must be proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes” of § 3553(a). Vowell, 516 F.3d at 512 (internal citation and quotation omitted). It could be argued that the presumption of reasonableness validated in Rita v. United States, — U.S.-, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), as recognized in Gall, may not apply here, as the district court did not impose a sentence within the advisory Guidelines range, but granted a downward variance from the low end of the range. See United States v. Phinazee, 515 F.3d 511, 514-15 (6th Cir. 2008); United States v. Kirchhof, 505 F.3d 409, 414-15 (6th Cir.2007). Yet, the fact that the sentence imposed is outside the Guidelines range does not give rise to a presumption of unreasonableness, Gall, 128 S.Ct. at 597, especially where the variance results in a sentence even more favorable to the challenging defendant than a within-Guidelines sentence. Moreover, simple logic compels the conclusion that, if a sentence of 324 to 405 months would have been" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "16249024", "title": "", "text": "arguing that his 37-month term is unduly harsh in light of his limited involvement in the conspiracy and his lack of criminal history. Counsel claims that while Pineda-Lopez may view the sentence as harsh, it was well within the district court’s discretion to impose it, and points out that the sentence is at the bottom of the advisory guideline range. Therefore, counsel argues, Pineda-Lopez’s argument would be frivolous if raised on appeal. Having reviewed the record and counsel’s Anders brief, we agree. The court reviews the reasonableness of a sentence under an abuse of discretion standard. United States v. Poetz, 582 F.3d 835, 837 (7th Cir.2009). We apply a presumption of reasonableness to a sentence that reflects proper application of the guidelines. Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Here, the sentence was reasonable. The district court properly calculated and considered the applicable Sentencing Guidelines range, did not clearly err in its factual findings, and imposed a sentence at the bottom of the range after considering the § 3553(a) factors. We conclude that there are no non-frivolous issues on appeal, grant counsel’s motion to withdraw, and dismiss Pineda-Lopez’s appeal. See United States v. Recendiz, 557 F.3d 511, 534 (7th Cir.2009). CONCLUSION We Vacate Teodulo Pineda-Buenaventura’s sentence and Remand to the district court for resentencing consistent with this opinion. We Vacate Otoniel Mendoza’s conviction and Remand for further proceedings. We Affirm the district court’s denial of Gerardo Pineda-Soria’s motion to suppress. And we Grant Pineda-Lopez’s counsel’s motion to withdraw and Dismiss his appeal. . “Pineda-Buenaventura” refers to defendant-appellant Teodulo Pineda-Buenaventura. When we refer to Efrain Pineda-Buenaventura, we do so using his full name so as to avoid confusion. . The government argues that Pineda-Buenaventura waived, not merely forfeited, appeal on this issue. But waiver is an intentional, strategic decision not to raise a challenge, whereas an argument is forfeited when the issue is not raised negligently or accidentally. See United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001). We can discern no tactical reason behind Pineda-Buenaventura's failure to raise this argument. See" }, { "docid": "22594790", "title": "", "text": "prior convictions”). We review the district court sentence for procedural and substantive reasonableness. United States v. Crawford, 281 Fed.Appx. 444, 449 (6th Cir.2008) (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Deitz does not specify whether he challenges his sentence on procedural or substantive grounds, but his contention that the district court improperly calculated the Guidelines range is procedural in nature, see United States v. Moon, 513 F.3d 527, 539 (6th Cir.2008) (noting that whether a court correctly calculated the applicable Guidelines range is a question of procedural reasonableness), and his overall objection to his 144-month sentence appears to be a substantive challenge. United States v. Vowell, 516 F.3d 503, 512 (6th Cir.2008) (“For a sentence to be substantively reasonable, it must be proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of [18 U.S.C.] § 3553(a).”). 1. Deitz’s sentence was procedurally reasonable When reviewing a sentence for procedural reasonableness, we must “ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence .... ” Moon, 513 F.3d at 539 (citing Gall, 128 S.Ct. at 594). Our “reasonableness review focuses on the factors listed in [18 U.S.C.] § 3553(a), one of which is the Sentencing Guidelines themselves.” Id. (citing United States v. Duckro, 466 F.3d 438, 442 (6th Cir.2006)). A sentence may be proeedurally unreasonable where the district court “fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” Id. Deitz’s primary argument is that the district court erred in its application of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). “[District courts are required to ‘consult’ the Guidelines as part of their consideration" }, { "docid": "22428496", "title": "", "text": "who challenges the sentence bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). “Review for reasonableness is deferential.” Id. This Court has established a two-part process for district courts to determine an appropriate sentence following Booker. The court must consult and correctly determine the sentencing range prescribed by the Sentencing Guidelines. Id. at 786. The court must then impose a reasonable sentence in the light of the factors enumerated in 18 U.S.C. § 3553(a). Id. We have regularly said that a district court need not account for every § 3553(a) factor, nor must it discuss each factor and the role that it played in sentencing. See, e.g., id. at 786; United States v. Robles, 408 F.3d 1324, 1328 (11th Cir.2005). Here, the government does not allege that the district court committed a procedural error. The government concedes that “the district court correctly calculated [Defendant’s] sentencing guidelines range.” It also acknowledges that the district court considered a number of the § 3553(a) factors. The district court also specifically found that the 84-months sentence “would be sufficient but not greater than necessary to accomplish [the] purposes [of sentencing].” The government’s challenge rests on the contention that the district court’s order was substantively unreasonable. Although we accept that a sentence may be unreasonable even where the district court followed the proper sentencing procedure, an appellate court should not simply substitute its judgment for that of the sentencing court. United States v. Melvin, 187 F.3d 1316, 1323 (11th Cir.1999) (“[I]t is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” (quoting Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 1121, 117 L.Ed.2d 341 (1992) (alteration in original))). The government argues that, although the district court discussed many of the § 3553(a) factors, it failed to give proper weight to some while overemphasizing others. Even if we were to disagree with the weight" }, { "docid": "8665029", "title": "", "text": "believes no such arguments exist. Thus, if the defendant chooses to proceed pro se, he or she will do so with as much advice and assistance as his or her attorney can ethically provide.”); Leyba, 379 F.3d at 55-56 (noting that a defendant who cannot speak English is entitled to an explanation of the substance of counsel’s Anders brief). Accordingly, we hold that an An-ders brief should include a discussion of the reasonableness of a defendant’s sentence. Counsel should typically address both the substantive and procedural reasonableness of the sentence. “In the substantive dimension ... [counsel should explain] whether the length of the sentence is reasonable, focusing our attention on the district court’s explanation of its sentence in light of the factors detailed in 18 U.S.C. § 3553(a).” Sindima, 488 F.3d at 84 (internal quotation marks and citations omitted). With respect to procedural reasonableness, counsel should discuss “such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and (c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). As we have “expressed a commitment to avoid the formulation of per se rules to govern” reasonableness review and declined “to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable,” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006), we emphasize that counsel’s analysis of the reasonableness of a defendant’s sentence cannot rely on generalities, but should instead reflect careful consideration of the particular sentencing determination under review. Finally, while we recognize that in certain limited instances, counsel may be able to demonstrate that a valid binding plea agreement renders discussion of rea sonableness unnecessary, see, e.g., United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.2000), we believe that in most cases counsel will be required to discuss a defendant’s sentence in order to demonstrate that a thorough search for arguably meritorious claims has been conducted. We therefore direct defendants’ counsel to address whether the" }, { "docid": "8665030", "title": "", "text": "(c) considered the Guidelines together with the other factors outlined in 18 U.S.C. § 3553(a).” United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). As we have “expressed a commitment to avoid the formulation of per se rules to govern” reasonableness review and declined “to establish any presumption, rebuttable or otherwise, that a Guidelines sentence is reasonable,” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir.2006), we emphasize that counsel’s analysis of the reasonableness of a defendant’s sentence cannot rely on generalities, but should instead reflect careful consideration of the particular sentencing determination under review. Finally, while we recognize that in certain limited instances, counsel may be able to demonstrate that a valid binding plea agreement renders discussion of rea sonableness unnecessary, see, e.g., United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir.2000), we believe that in most cases counsel will be required to discuss a defendant’s sentence in order to demonstrate that a thorough search for arguably meritorious claims has been conducted. We therefore direct defendants’ counsel to address whether the sentences at issue are substantively and procedurally reasonable. The motions to withdraw as counsel are denied without prejudice to their renewal, and consideration of the government’s motions for summary affirmance is deferred until renewed consideration of the motions to withdraw. The clerk’s office is directed to set a briefing schedule. The resubmitted Anders briefs and the deferred motions should be submitted to a new panel in the ordinary course. . We also note that in Artis’s case, the sentencing memorandum submitted to the district court following the Crosby remand shows that counsel did not make any arguments about how defendant's individual circumstances related to the factors set forth in 18 U.S.C. § 3553(a). While it may be that the issues raised below-essentially the government’s delay in prosecution and the possibility of vacatur of a state conviction-were the only arguments available even following Booker and Crosby, it is impossible to make such a determination on the record before us, and in any event, we may not engage in independent review of the record absent a satisfactory" }, { "docid": "23685374", "title": "", "text": "HILL, Circuit Judge: James Lee Early appeals his 210-month sentence imposed after he plead guilty to robbing two banks using what turned out to be fake bombs. Finding no reversible error, we shall affirm. I. James Lee Early plead guilty to two counts of robbing a bank by violence, in violation of 18 U.S.C. § 2113(a) and (d) charged against him in two different, consolidated cases brought in the Middle and Northern Districts of Florida. In exchange for his plea, the United States agreed to dismiss all remaining charges in the two cases and to recommend a sentence at the “low end” of whatever sentencing guidelines range the district court determined. At the sentencing hearing, the district court determined an undisputed sentencing guidelines range of 78-97 months’ imprisonment. The court also heard testimony from two of Early’s victims, a statement from Early, and argument from Early’s counsel. The United States recommended a sentence at the low end of the guidelines range. The court discussed the relevant sentencing factors located in 18 U.S.C. § 3553(a) and then sentenced him to 210 months’ imprisonment. Early objected to the sentence, asserting that it was both procedurally and substantively unreasonable. On appeal, Early claims only that his sentence is substantively unreasonable. We review this claim under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The party challenging the sentence bears the burden of establishing that the sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). While the district court making such an upward variance must have a justification compelling enough to support the degree of the variance and complete enough to allow meaningful appellate review, we will vacate such a sentence only if “we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.”" }, { "docid": "20457906", "title": "", "text": "defendant’s assistance. U.S.S.G. § 5Kl.l(a). When imposing a sentence that is well below the advisory Guidelines range pursuant to a § 5K1.1 motion, however, there must be some indication that the district court’s departure is justified. See United States v. Haack, 403 F.3d 997 (8th Cir.2005) (examining the reasonableness of the sentence against the five factors outlined in U.S.S.G. § 5K1.1 and concluding that imposition of a 78-month sentence was not justified where the Guidelines range was 180 months and the assistance the defendant provided consisted of information regarding others who were either already under indictment or were suspects); see also United States v. Livesay, 525 F.3d 1081, 1093 (11th Cir.2008) (vacating and remanding sentence where the district court did not adequately explain its assessment of Livesay’s cooperation or the sentence imposed). 2 Once an appellate court has concluded that no procedural error has occurred, it must review sentences for substantive reasonableness. Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)’s sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (quoting 18 U.S.C. § 3553(a)); see also United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (affirming sentence as reasonable where the record shows the district court considered the § 3553(a) factors and imposed a sentence that was sufficient but no greater than necessary to comply with § 3553(a)); United States v. Rodriguez-Rodriguez, 441 F.3d 767, 771 (9th Cir United States.2006) (same). “The touchstone of ‘reasonableness’ is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)); see also United States v. Williams, 425 F.3d 478, 481 (7th Cir.2005) (“[W]hat we must decide is whether the district judge imposed the sentence he or she did for reasons that are logical and consistent with the factors set forth in section 3553(a).”). “In determining substantive reasonableness, we are to" }, { "docid": "23066437", "title": "", "text": "the district court’s deviation from the applicable guidelines range for reasonableness.” United States v. Tankersley, 537 F.3d 1100, 1114 (9th Cir.2008); see also United States v. Blixt, 548 F.3d 882, 890-91 (9th Cir.2008) (reviewing the district court’s denial of a downward departure under § 5K2.13 of the Sentencing Guidelines only as part of the substantive reasonableness analysis). Thus, our ease law is clear that we do not review the denial of a departure under § 5K of the Sentencing Guidelines for procedural error. See United States v. Ellis, 641 F.3d 411, 420-21 (9th Cir.2011). Accordingly, we reject Rosales-Gonzales’s argument that the district court committed procedural error by declining to grant him a four-level downward departure under § 5K3.1. We address his additional arguments concerning the denial of this departure below in our analysis of the substantive reasonableness of his sentence. 2. Sentencing Guidelines as the “Starting Point” The Sentencing Guidelines establish a three-step procedure that district courts must follow in determining the proper sentence: (1) calculate the appropriate Guidelines range, including the offense level and criminal history category of the defendant; (2) consider any applicable departures under § 5H or § 5K of the Guidelines; and (3) consider the factors enumerated in 18 U.S.C. § 3553(a). U.S. Sentencing Guidelines Manual § 1B1.1 (2014); see also United States v. Lee, 725 F.3d 1159, 1165 n. 5 (9th Cir.2013) (per curiam) (same). The Supreme Court has held that even though the Sentencing Guidelines are advisory only, district courts must use the Guidelines as the “starting point” for determining a sentence. See, e.g., Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). While the district court may impose a sentence outside the Guidelines range, “it may not manipulate the calculations under the Sentencing Guidelines in order to produce a Guidelines range that will allow it to impose the sentence it prefers.” Lee, 725 F.3d at 1164. Although Rosales-Gonzales contends his case is analogous to Lee, we find the facts sufficiently distinguishable to conclude the district court did not err. In Lee, the district court began by finding" }, { "docid": "8665025", "title": "", "text": "judgment entered in the United States District Court for the Northern District of New York (McAvoy, J.), following a jury trial at which he was convicted on one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), and one count of unlawful possession of ammunition in violation of 18 U.S.C. § 922(g). Artis was sentenced to a term of forty-one months imprisonment to run concurrently on both counts and a term of supervised release. He appealed, and we remanded for the district court to consider whether Artis should be resen-teneed in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). On remand, the district court concluded that resentencing was not warranted and that the sentence previously imposed was “appropriate and reasonable.” We will not grant an Anders motion unless we are “satisfied that counsel has diligently searched the record for any arguably meritorious issue in support of his client’s appeal,” and “defense counsel’s declaration that the appeal would be frivolous is, in fact, legally correct.” United States v. Burnett, 989 F.2d 100, 104 (2d Cir.1993). In the two appeals before us, neither counsel has satisfactorily addressed the reasonableness of his or her client’s sentence. “We review sentences for reasonableness, which has both substantive and procedural dimensions.” United States v. Sindima, 488 F.3d 81, 84 (2d Cir.2007) (internal citations omitted); see also United States v. Williams, 475 F.3d 468, 474 (2d Cir.2007) (holding “that we review a sentence for reasonableness even after a District Court declines to resentence pursuant to Crosby”). The Anders brief submitted by Whitley’s counsel merely recites the legal standard for procedural reasonableness and describes the sentencing process. Counsel does not analyze the procedural reasonableness of Whitley’s sentence, and never mentions substantive reasonableness. Similarly, the brief submitted by Artis’s counsel identifies certain procedural errors that could render a sentence unreasonable, states conclusorily that “the record reveals that the district court did not commit any” such errors, and" }, { "docid": "8665024", "title": "", "text": "PER CURIAM: In two separate appeals from criminal convictions, consolidated for disposition, court-appointed defense counsel move to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), on the ground that there is no non-frivolous basis for appeal. Because counsel’s Anders briefs fail to address adequately the reasonableness of defendants’ sentences, we deny the motions to withdraw without prejudice to their subsequent renewal, and defer consideration of the government’s motions for summary affirmance until renewed consideration of the motions to withdraw. Defendant-appellant Clifton Whitley appeals from a judgment of conviction en tered in the United States District Court for the Northern District of New York (Kahn, J.), following a plea of guilty to one count of making false statements to a firearm’s dealer, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). The court imposed a sentence of forty-six months imprisonment, to be followed by a three year term of supervised release, a sentence at the bottom of the guidelines range. Defendant-appellant Clarence L. Artis, Jr., appeals from a judgment entered in the United States District Court for the Northern District of New York (McAvoy, J.), following a jury trial at which he was convicted on one count of unlawful possession of a firearm in violation of 18 U.S.C. § 922(g), and one count of unlawful possession of ammunition in violation of 18 U.S.C. § 922(g). Artis was sentenced to a term of forty-one months imprisonment to run concurrently on both counts and a term of supervised release. He appealed, and we remanded for the district court to consider whether Artis should be resen-teneed in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and this court’s decision in United States v. Crosby, 397 F.3d 103 (2d Cir.2005). On remand, the district court concluded that resentencing was not warranted and that the sentence previously imposed was “appropriate and reasonable.” We will not grant an Anders motion unless we are “satisfied that counsel has diligently searched the record for any arguably meritorious issue" }, { "docid": "20457889", "title": "", "text": "the standard conditions, together with those additional conditions set forth in the presentence report. I recognize that the sentence I am imposing reflects a significant downward deviation from the advisory guideline range. However, I believe the factors I have examined on the record are sufficiently compelling to support the degree of the variance. Id. at 41-42. II The Government asserts that “[t]he sole issue presented in this case is whether the sentence imposed on Ahmed Ressam is substantively unreasonable in light of the facts of this case and the factors set forth in 18 U.S.C. § 3553(a).” Appellant’s Opening Brief at 36. While recognizing that we “must first determine whether the district court committed significant procedural error,” the Government maintains that procedural error is “a claim not raised in this appeal.” Id. By our reading of the issue on appeal, however, the Government is also impliedly challenging the sentence as proeedurally unsound because its arguments are grounded upon the district court's alleged failure adequately to consider and weigh each of the relevant § 3553(a) factors, including “to protect the public from further crimes of the defendant,” and to explain its reasons for imposing a sentence 43 years below the low end of the Sentencing Guidelines range. See Carty, 520 F.3d at 993 (holding that “[i]t would be procedural error for a district court to fail to ... consider the § 3553(a) factors ... or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range”) (citing Gall, 128 S.Ct. at 596-97); see also United States v. Paul, 561 F.3d 970, 974 n. 2 (9th Cir.2009) (“It is the procedural provisions of 18 U.S.C. § 3553(c) that require engagement with the [parties’] arguments, not the substantive provisions of 18 U.S.C. § 3553(a)”); United States v. Overton, 573 F.3d 679, 699 (9th Cir.2009) (concluding that appellant “allude[d] to procedural error by accusing the district court of failing to address the § 3553(a) factors and adequately explain the sentence imposed”). We believe that the Government may have framed the issue on appeal as it did because more clarity is" }, { "docid": "20457894", "title": "", "text": "unreasonable but “alluded to” procedural error); United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir.2009) (reviewing for procedural error even though the only contention on appeal was that the sentence was substantively unreasonable). Having concluded that we must first review a sentence for procedural error, we now address what that review entails. 1 In Carty, we addressed the question whether “the district court imposed a procedurally flawed sentence by failing to provide sufficient reasons for selecting a sentence at the bottom of the Guidelines range rather than a lesser sentence.” Carty, 520 F.3d at 995. We held that [i]t would be procedural error for a district court to fail to calculate—or to calculate incorrectly—the Guidelines range; to treat the Guidelines as mandatory instead of advisory; to fail to consider the § 3553(a) factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range. Id. at 993. We concluded that the district court committed no procedural error in sentencing Carty to a within Guidelines sentence because “[although the judge gave no explicit reasons for [the sentence imposed], the arguments were straight-forward and uncomplicated....” Id. In a “typical case” which is “neither complex nor unusual,” applying the Guidelines “will not necessarily require lengthy explanation” to comply with proper sentencing procedure. Id. at 995. (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007) (finding no error and holding that “given the straight forward, conceptually simple arguments before the judge, the judge’s statement of reasons here, though brief, was legally sufficient”)); see also United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir.2009) (same). What Carty left unclear is whether a sentence is procedurally flawed where the district court fails to provide “sufficient reasons” for selecting a sentence that is well below the Sentencing Guidelines range, and where “the arguments [are not] straightforward and uncomplicated,” and if so, what explanation will be deemed “sufficient” or “adequate” to pass procedural muster. Carty, 520 F.3d at 995. Based upon our reading of Rita," }, { "docid": "23473988", "title": "", "text": "district court remarked during the sentencing hearing that it had granted such departures in the past. Consequently, we decline to review the district court’s decision to not depart downward under U.S.S.G. § 5H1.6. Second, the record in this case indicates that the district court’s refusal to vary Carter’s sentence below the applicable advisory guidelines range did not render Carter’s sentence unreasonable. Although the district court’s denial of the downward departure is not reviewable, Carter’s sentence remains reviewable for reasonableness. See Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007); United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also United States v. McBride, 434 F.3d 470, 476-77 (6th Cir.2006). The question of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review. Gall v. United States, — U.S. ——, 128 S.Ct. 586, 594-95, 169 L.Ed.2d 445 (2007). Review for reasonableness has both procedural and substantive components. See Gall, 128 S.Ct. at 596-97; United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). The record indicates that the district court committed no significant procedural error with respect to Carter’s sentence. The district court did not “fail[ ] to calculate (or improperly calculate]) the Guidelines range, treat[ ] the Guidelines as mandatory, fail[ ] to consider the § 3558(a) factors, select[ ] a sentence based on clearly erroneous facts, or fail[ ] to adequately explain the chosen sentence.” Gall, 128 S.Ct. at 596-97; see also United States v. Ferguson, 456 F.3d 660, 664 (6th Cir.2006). During the sentencing hearing, the district court heard testimony and argument regarding the Carter family’s medical and financial condition. The record reveals that the district court considered the properly calculated guidelines range before imposing a sentence and did not treat the sentencing guidelines as mandatory. The record also reveals that the district court considered a number of other relevant 18 U.S.C. § 3553(a) factors, including Carter’s criminal history and the characteristics of his offense, see § 3553(a)(1), the Sentencing Commission’s policy statements regarding reductions based on family ties and responsibilities, see" }, { "docid": "8665028", "title": "", "text": "constructive denial of counsel to appellants,” Zuluaga, 981 F.2d at 75, who are entitled to “a diligent and thorough review of the record and an identification of any arguable issues revealed by that review,” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). An inadequate Anders brief also harms defendants by failing to provide them with complete information about the basis for counsel’s motion to withdraw. Cf. United States v. Leyba, 379 F.3d 53, 54 (2d Cir.2004) (Defense counsel must also provide the client with a copy of the An-ders brief and “a letter informing the client that he or she has the right to file a pro se brief.” (internal quotation marks omitted)). Without such information, defendants cannot effectively respond to counsel’s claims and inform us of their objections to Anders motions. Cf. Campusano v. United States, 442 F.3d 770, 776 (2d Cir.2006) (“An Anders brief at least makes available to the defendant the best possible arguments supporting his appeal or the reasons why counsel believes no such arguments exist. Thus, if the defendant chooses to proceed pro se, he or she will do so with as much advice and assistance as his or her attorney can ethically provide.”); Leyba, 379 F.3d at 55-56 (noting that a defendant who cannot speak English is entitled to an explanation of the substance of counsel’s Anders brief). Accordingly, we hold that an An-ders brief should include a discussion of the reasonableness of a defendant’s sentence. Counsel should typically address both the substantive and procedural reasonableness of the sentence. “In the substantive dimension ... [counsel should explain] whether the length of the sentence is reasonable, focusing our attention on the district court’s explanation of its sentence in light of the factors detailed in 18 U.S.C. § 3553(a).” Sindima, 488 F.3d at 84 (internal quotation marks and citations omitted). With respect to procedural reasonableness, counsel should discuss “such factors as whether the district court properly (a) identified the Guidelines range supported by the facts found by the court, (b) treated the Guidelines as advisory, and" }, { "docid": "22783540", "title": "", "text": "with Villafuerte’s family situation but found that the effect of conviction on them was “irrelevant” because it was the natural consequence of Villaf-uerte’s decision to commit the crime. Finally, the court said: In this case, I find that the advisory guidelines take into account all of the 3553(a) factors and the other factors, in terms of determining what’s an appropriate sentence, and I believe that the bottom of the advisory guideline range is the minimum, that is a fair sentence, in terms of the conduct that’s involved here. Villafuerte did not object to this statement or his sentence during the hearing. He now appeals his sentence. DISCUSSION We review a district court’s sentencing decisions for both substantive and procedural reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). Reasonableness review is similar to review for abuse of discretion and may require reversal when the district court’s decision “cannot be located within the range of permissible decisions” or is based on a legal error or clearly erroneous factual finding. United States v. Sindima, 488 F.3d 81, 85 (2d Cir.2007) (internal quotation marks omitted). Substantive reasonableness involves the length of the sentence imposed in light of the factors enumerated under 18 U.S.C. § 3553(a). Rattoballi, 452 F.3d at 132. Procedural reasonableness concerns the procedures a district court employs in arriving at a sentence. United States v. Canova, 485 F.3d 674, 679 (2d Cir.2007). To impose a procedurally reasonable sentence, see United States v. Giovanelli, 464 F.3d 346, 355 (2d Cir.2006) (per curiam); Rattoballi, 452 F.3d at 131, a district court must (1) normally determine the applicable Guidelines range, (2) consider the Guidelines along with the other factors under § 3553(a), and (3) determine whether to impose a Guidelines sentence or a non-Guidelines sen tence, see United States v. Crosby, 397 F.3d 103, 111-13 (2d Cir.2005); see also United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.2006). We review the district court’s interpretation of the Guidelines de novo and its findings of fact for clear error. Rattoballi, 452 F.3d at 131. I. Consideration of the 18 U.S.C. § 3553(a) Factors" } ]

[ { "docid": "22555277", "title": "", "text": "of Part IV of Gall reaffirms my view of the meanings of procedural and substantive. The first paragraph of Part IV states that the discussion to follow will relate to procedural error, and it lists several procedural requirements (including my step 3, listening to argument by the parties): As an initial matter, we note that the District Judge committed no significant procedural error. He correctly calculated the applicable Guidelines range, allowed both parties to present arguments as to what they believed the appropriate sentence should be, considered all of the § 3553(a) factors, and thoroughly documented his reasoning. The Court of Appeals found that the District Judge erred in failing to give proper weight to the seriousness of the offense, as required by § 3553(a)(2)(A), and failing to consider whether a sentence of probation would create unwarranted disparities, as required by § 3553(a)(6). Id. at 598. Part IV continues with the Court’s refutation of the arguments that the sentencing judge had ignored the health risks of the drug ecstasy and the need to avoid unwarranted disparities in sentences. The first sentence of the concluding paragraph of Part IV then states: Since the District Court committed no procedural error, the only question for the Court of Appeals was whether the sentence was reasonable — ie., whether the District Judge abused his discretion in determining that the § 3553(a) factors supported a sentence of probation and justified a substantial deviation from the Guidelines range. Id. at 600. Again, the Court appears to view substantive error as error in the weighing of proper factors and fixing the sentence. The concluding portion of Kimbrough also supports my view that consideration of an improper factor is a procedural error. Part V begins: “Taking account of the foregoing discussion [regarding the crack-cocaine Guidelines] in appraising the District Court’s disposition in this case, we conclude that the 180-month sentence imposed on Kimbrough should survive appellate inspection.” 128 S.Ct. at 575. The Court then notes that the district court “properly calculated] and considered] the advisory Guidelines range,” and “addressed the relevant § 3553(a) factors.” Id. “[T]he District Court,”" } ]

[ { "docid": "12077316", "title": "", "text": "an evidentiary hearing. III. Conclusion The district court correctly interpreted Amendment 706, and did not abuse its discretion when it denied Brown’s 18 U.S.C. § 3582(c)(2) motion. See Smartt, 129 F.3d at 540 (dictating de novo review of a district court’s interpretation of a statute or the Sentencing Guidelines); Dorrough, 84 F.3d at 1311 (noting that the “retroactive application of a change in the offense level of the Sentencing Guidelines is not required ... but rather falls within the district court’s discretion”). AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument. . Brown's conviction and sentence were affirmed on direct appeal. United States v. Brown, 212 F. App’x 736, 2007 WL 64835 (10th Cir.2007) (unpublished). . This Sentencing Guidelines range of 235 to 293 months' imprisonment resulting from an offense level of 38 was Brown’s \"applicable guideline range\" as referenced in U.S.S.G. § IB 1.1 cmt. n.lE, and further defined in United States v. Villa-Vazquez, 536 F.3d 1189, 1197 (10th Cir.2008) (defining the \"applicable guideline range” as the range calculated before departures or variances)." }, { "docid": "22436172", "title": "", "text": "hearing that he had reentered the country in violation of the terms of his supervised release. The District Court then granted the petition and imposed a fifteen-month sentence to run consecutively to the thirty-month sentence for the instant reentry offense. See U.S.S.G. § 7B1.3(f). On appeal, Mr. Rodriguez-Quintanilla argues the District Court abused its discretion in imposing a consecutive sentence and that the consecutive sentence is unreasonable after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). II. DISCUSSION Under 18 U.S.C. § 3584(a), a district court has the discretion to impose consecutive or concurrent sentences. United States v. Russell, 905 F.2d 1450, 1457 (10th Cir.1990). The district court’s discretion is guided by the factors delineated by 18 U.S.C. § 3553(a), see id. (citing 18 U.S.C. § 3584(b)), which include the characteristics of the offense and the defendant, the need for deterrence and the protection of the public, and, in cases involving a violation of supervised release, “the applicable guidelines or policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines, policy statements regarding supervised release are advisory in nature. United States v. Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir.2005). The applicable policy statement contained in § 7B1.3(f) recommends that: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteen-month sentence to run consecutively with the thirty-month sentence is in accordance with the advisory policy statement contained in § 7B1.3(f). In such a case, the defendant bears the burden to demonstrate that the District Court should exercise its discretion to impose concurrent sentences in spite of that statement. United States v. Urcino-Sotello, 269 F.3d 1195, 1197 (10th Cir.2001). This Court, prior to Booker, has applied two different standards of review to" }, { "docid": "23567459", "title": "", "text": "as meritless. F. District Court’s Discretion to Impose a Consecutive Sentence Watford argues that the District Court erred in imposing the 240-month sentence on Count 2 of the Third Superseding Indictment to run consecutively to his three life terms in Illinois. He urges this Court to find that the District Court’s sentence was not “reasonable” under Booker. Because the alleged unreasonableness arises from the District Court’s decision to impose a sentence running consecutive to, rather than concurrent with, the undischarged Illinois sentence, we review the District Court’s decision for abuse of discretion. United States v. Campbell, 309 F.3d 928, 930 (6th Cir.2002) (“A district court’s decision to impose a consecutive or concurrent sentence under § 5G1.3 of the Sentencing Guidelines is reviewed for abuse of discretion.”). When imposing a term of imprisonment on a defendant who is already subject to an undischarged term of imprisonment, a district court generally may order that the terms run either concurrently or consecutively. 18 U.S.C. § 3584. The advisory Guidelines are consistent on this point. Section 5G1.3(c) provides that “the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c) (1997) (policy statement). Application Note 3 provides further guidance for what is needed to achieve a “reasonable punishment.” To achieve a reasonable punishment and avoid unwarranted disparity, the court should consider the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)) and be cognizant of: (a) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely to be served before release; (c) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (d) any other circumstances relevant to the determination of an appropriate sentence for the instant offense. U.S.S.G. § 5G1.3 application note 3 (1997). We have held that where a" }, { "docid": "5832030", "title": "", "text": "and of itself provides an adequate explanation for the degree of departure, the district court did not award the maximum statutory sentence, but instead chose to award a sentence at the lower end of the offense level it selected. This leaves us without even the degree of certainty afforded by an unexplained application of the maximum statutory sentence. See United States v. Checora, 175 F.3d 782, 795 n. 6 (10th Cir.1999). Given our inability to determine whether the degree of departure was unreasonable, we must remand for resentencing. Accordingly, we AFFIRM the district court’s upward departure, VACATE the sentence, and REMAND to the district court for resentencing in a manner consistent with this opinion. . In his plea bargain agreement, defendant specifically reserved the right to appeal any upward departure from the sentencing guideline range determined by the sentencing court to apply to his case. R., doc. 16, at 4. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . The district court also sentenced defendant to the minimum statutory sentence of eighty-four months (seven years) on the firearms count, to be served consecutively with the armed bank robbery sentence. This sentence, length of which was specifically set by USSG § 2K2.4(a)(2), was not enhanced by either the career offender or the upward departure. . The judgment and sentence also contains a statement identifying the reason for departure, which is similarly unhelpful as to the degree of departure. R., Vol. I, doc. 28 at 7. . We note that the career offender guideline is already designed to insure that career offenders receive a sentence at or near the statutory maximum. See USSG § 4B1.1 comment (backg'd); see also 28 U.S.C. § 994(h) (Congressional directive concerning career offenders)." }, { "docid": "22201002", "title": "", "text": "its determination of what is reasonable in light of the same § 3553(a) factors, whether that sentence is within or outside the Guidelines range. Accordingly, as five other circuits have concluded, unreasonable sentences, whether they fall within or outside the advisory Guidelines range, are “imposed in violation of law” and thus reviewable pursuant to § 3742(a)(1). In effect, then, the meaning of “in violation of law” in § 3742(a) “is ... broadened for sentences imposed after Booker.” Chavez-Diaz, 2006 WL 1000811, at *5. We note, furthermore, that the Supreme Court in Booker expressly directed appellate courts to review all sentences for reasonableness. We conclude that we have jurisdiction over this appeal. We therefore proceed to address Mr. Sanchez-Juarez’s claims, based on the standards that, since Booker, have become established in our circuit. il. Review of Mr. Sanchez-Juarez’s sentence Following Booker, “[w]e review sentences imposed by the district court for reasonableness.” United States v. Galarza-Payan, 441 F.3d 885, 887 (10th Cir.2006). In conducting this review, we consider whether the district court correctly applied the Guidelines and whether the ultimate sentence is reasonable in light of the factors set forth in' 18 U.S.C. § 3553(a). United States v. Kristl, 437 F.3d 1050, 1053-54 (10th Cir.2006) (per curiam). We have held that when a sentence falls within the properly-calculated Guidelines range, it is “ ‘entitled to a re-buttable presumption of reasonableness.’ ” Galarza-Payan, 441 F.3d at 889 (quoting Kristi, 437 F.3d at 1054). As indicated above, Mr. Sanchez-Juarez does not challenge the district court’s application of the Guidelines. However, he argues that the presumption of reasonable ness does not apply here, even though his sentence falls on the low end of the correctly-calculated Guidelines range, and that his sentence is procedurally unreasonable, because the district court failed to state reasons for the sentence it imposed and failed to consider his arguments that the § 3553(a) factors warranted a sentence below the applicable Guidelines range. Alternatively, he contends that even if we apply the presumption, his arguments are sufficient to rebut it. There is no question that, in addition to guiding our reasonableness review" }, { "docid": "22436173", "title": "", "text": "the Sentencing Commission.” 18 U.S.C. § 3553(a). Like the post-Booker Guidelines, policy statements regarding supervised release are advisory in nature. United States v. Contreras-Martinez, 409 F.3d 1236, 1240 (10th Cir.2005). The applicable policy statement contained in § 7B1.3(f) recommends that: Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. Therefore, the District Court’s order requiring Mr. Rodriguez’s fifteen-month sentence to run consecutively with the thirty-month sentence is in accordance with the advisory policy statement contained in § 7B1.3(f). In such a case, the defendant bears the burden to demonstrate that the District Court should exercise its discretion to impose concurrent sentences in spite of that statement. United States v. Urcino-Sotello, 269 F.3d 1195, 1197 (10th Cir.2001). This Court, prior to Booker, has applied two different standards of review to determine whether a district court erred in fashioning a sentence for violation of supervised release. Generally, multiple sentences imposed consecutively should be reviewed for an abuse of discretion. See, e.g., United States v. Williams, 46 F.3d 57, 58 (10th Cir.1995). But a sentence imposed after a defendant violates a term of supervised release should be reviewed under the “plainly unreasonable” standard set forth at 18 U.S.C. § 3742(e). See United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.2004). Because these two scenarios may coexist, we have at times applied the “plainly unreasonable” standard of review — rather than an abuse of discretion standard — to the imposition of consecutive sentences for immigration and supervised release violations. See Contreras-Martinez, 409 F.3d at 1239, 1240-41. Despite this apparent incongruence in our precedent on the matter, the two standards of review are quite similar. As in a review for abuse of discretion, in determining whether a sentence imposed after revocation of a term of supervised release is “plainly unreasonable” under § 3742(e), the district court is required" }, { "docid": "22270227", "title": "", "text": "to appeal, and because the district court lacked the authority to modify the plea agreement in these circumstances, we conclude that the waiver-of-appeal provision should be enforced. Accordingly, Mr. Black has waived his right to appeal his sentence on the grounds he asserts in his appellate brief. III. CONCLUSION For the reasons set forth above, we conclude that the district court did not abuse its discretion in denying Mr. Black’s motion to withdraw his guilty plea. Moreover, in light of the provisions of the plea agreement, Mr. Black has waived his right to appeal his sentence. Accordingly, we AFFIRM the district court’s denial of Mr. Black’s motion to withdraw his guilty plea. We DISMISS Mr. Black’s appeal insofar as it concerns the imposition of his sentence. . After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . In light of our conclusion that Mr. Black has waived the right to appeal his sentence, we do not here address the § 2K2.1(b)(5) enhancement or the district court’s consideration of the Colorado misdemeanor offense. . Unlike some plea agreements, the one between the government and Mr. Black does not state that a particular sentence or range of sentences would constitute an appropriate disposition of the case. Compare Rec. vol. I, doc. 125, at 7 (plea agreement containing no statement as to an appropriate sentence or range of sentences) with United States v. Veri, 108 F.3d 1311, 1313 (10th Cir.1997) (upholding plea agreement providing that the government and the defendant agreed as to the appropriate offense level and therefore to \"a sentencing range of twenty-one to twenty seven months’ imprisonment”). In United States v. Rosa, 123 F.3d 94, 99-100 (2d Cir.1997), the Second Circuit has contrasted plea agreements that specify a sentencing range with those that do not. The former agreements allow the defendant \"in advance, to evaluate the predicted range and assess in an informed manner whether he is" }, { "docid": "13476206", "title": "", "text": "Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence— including an explanation for any deviation from the Guidelines range. Gall, 552 U.S. at 51, 128 S.Ct. 586. In reviewing the district court’s sentence for procedural reasonableness, we review the district court’s legal conclusions de novo and its factual findings for clear error. Fonseca, 473 F.3d at 1112. In reviewing the district court’s sentence for substantive reasonableness, this court considers the sentence imposed under an abuse of discretion standard and will “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51, 128 S.Ct. 586. Here, the district court’s sentence is both procedurally and substantively reasonable. Shuck argues that the district court failed to consider § 5Kl.l(a)(4), “any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance.” However, at the sentencing hearing, the district court considered Shuck’s argument regarding the potential threat of retribution from co-defendant Vincent Watson. Shuck argued to the district court that his property had been vandalized and that his employer had received a potentially threatening telephone call about Shuck’s case. R. Vol. 2, at 18-20. In determining Shuck’s sentence, the district court properly considered each of the § 3553(a) factors and found that “there are no factors present that separate [Shuck] from the mine run of similarly situated defendants in similar cases.” Id. at 25. The district court also found that it “has granted a significant downward departure based on [Shuck’s] substantial assistance to the government and finds no reason to grant an additional variance from the departure guideline range.” Id. We conclude that the district court’s sentence for Shuck was reasonable. Ill For the foregoing reasons, we AFFIRM. . After examining the brief and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G)." }, { "docid": "11160709", "title": "", "text": "category, which possesses enough of the character of traditional sentencing to invoke the constitutional and procedural guarantees discussed above. In sum, then, we conclude the district court had jurisdiction to consider the government’s motion for reconsideration, but, in granting relief-involving an increase to Bly’s modified sentence, the district court should have afforded Bly the procedural guarantees criminal sentencing traditionally entails. Accordingly, we remand the case to the district court to vacate its order recasting Bly’s terms of imprisonment as consecutive. On remand, the court may conduct any further proceedings it deems appropriate, consistent with this opinion. The cause is REMANDED to the district court to VACATE its resentencing order of October 16, 2001, and then to conduct any further proceedings it deems appropriate, consistent with this opinion. . We reject the government's argument that this appeal should he dismissed as untimely under the much more restrictive rules governing criminal appeals. The government chose to proceed by way of a civil motion for reconsideration and, consistent with the authority cited above, Bly's notice of appeal was timely filed pursuant to Fed. R.App. P. 4(a) after that motion was decided. We decline to recast the relevant procedural events after the fact in such a way as to cut off appeal rights. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. . We emphasize that the initial action taken by the district court was simply a mechanical reduction of sentence as requested by the defendant; it did not entail a vacatur of sentence followed by a de novo resentencing proceeding. We need not decide which rules would govern in the latter event. . The provision in Rule 35(c) applicable here was moved to subsection (a) by the 2002 amendments to the Rule. . A helpful collection of cases touching on the question whether a motion under Rule 35(c) tolls the rule's seven-day deadline for correction of sentence is set" }, { "docid": "1393102", "title": "", "text": "T.G. NELSON, Circuit Judge: Defendant Fidel Jose Luna-Madellaga appeals his sentence imposed following his plea of guilty to illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a)(2). We have jurisdiction over this appeal under 28 U.S.C. § 1291. We affirm. I. At the time the district court sentenced defendant on the illegal reentry after deportation conviction, defendant was serving a sentence in Nevada State Prison for an unrelated offense. The district court therefore applied U.S.S.G. § 5G1.3, which specifically addresses situations where the defendant being sentenced is subject to an undischarged term of imprisonment. The district court, after considering the factors set out in § 5G1.3, sentenced defendant to twelve months’ incarceration to be served consecutively to the sentence defendant is currently serving in Nevada State Prison. Defendant appeals, claiming that the district court erred in its application of § 5G1.3. II. Section 5G1.3 directs a sentencing court to impose a sentence to run either “concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c) (1995). In determining whether a concurrent, partially concurrent or consecutive sentence is “a reasonable punishment,” and to “avoid unwarranted disparity,” a sentencing court is to consider the factors set out in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)), as well as (a) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (b) the time served on the undischarged sentence and the time likely to be served before release; (e) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (d) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. U.S.S.G. § 5G1.3, comment, (n.3) (1995). The district court considered each of the factors set out in § 5G1.3, found that a consecutive sentence would achieve a reasonable punishment, and sentenced defendant accordingly. Defendant argues, however, that the district court erred in its application of" }, { "docid": "23217145", "title": "", "text": "TYMKOVICH, Circuit Judge. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. Eduardo Galarza-Payan, a Mexican citizen, pleaded guilty to reentry after deportation in violation of 8 U.S.C. § 1326(a)(1), (2) and (b)(2). Galarza asked the district court to consider sentencing him below the applicable range in the United States Sentencing Guidelines on the basis of his “cultural assimilation” — i.e., close familial and cultural ties to the United States. The district court denied his request and sentenced him within the range called for by the Guidelines. He now appeals his sentence, contending that the court acted unreasonably in refusing to adjust his sentence downward. We take jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM. I. Background Galarza was apprehended in Sunland Park, New Mexico, where he admitted to entering the United States illegally. Ga-larza had previously been deported to Mexico based upon a felony conviction (robbery) committed in El Paso, Texas. He pleaded guilty to illegal reentry as charged in the present indictment. At sentencing, the government’s presen-tence report calculated that Galarza’s presumptive sentence under the Guidelines fell in the range of 57 to 71 months. Ga-larza initially moved for a downward departure from the applicable range on the grounds of cultural assimilation. Specifically, he argued that his culpability should be mitigated because his reentry was motivated by his “family and community ties” to this country. Aplt. Br. at 5. During Galarza’s sentencing proceedings, the Supreme Court issued United States v. Booker, 543 U.S. 220, 258-59, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which made the application of the Guidelines advisory, rather than mandatory. Responding to the changed legal landscape, Galarza filed a post-Booker sentencing memorandum in which he reiterated his cultural assimilation grounds for a sentence adjustment but urged the court to consider these factors as a matter of discretion, given the advisory nature of the Guidelines. In particular," }, { "docid": "22201011", "title": "", "text": "range). Here, the argument Mr. Sanchez-Juarez raised at sentencing, and reiterates on appeal, concerning the incongruity between the actual conduct involved in his prior alien smuggling conviction and the 16-level increase suggested by the Guidelines is not clearly meritless. District courts have imposed below-Guidelines sentences because of such incongruities in other cases. See, e.g., United States v. Aus tin, 2006 WL 305462, at *8 (S.D.N.Y. Feb.6, 2006); United States v. Santos, 406 F.Supp.2d 320, 328 (S.D.N.Y.2005); United States v. Zapata-Trevino, 378 F.Supp.2d 1321, 1327 (D.N.M.2005); United States v. Galvez-Barrios, 355 F.Supp.2d 958, 963 (E.D.Wis.2005). Furthermore, this court has indicated, when remanding a case based on nonconstitutional Booker error, that where § 2L1.2 imposed a 16-level enhancement but the actual offense conduct was “relatively trivial,” there was a “reasonable probability” that a district court exercising its discretion in light of the § 3553(a) factors would impose a below-Guidelines sentence. Trujillo-Terrazas, 405 F.3d at 819. Having identified one argument that is not clearly meritless and was raised at sentencing, we need not consider whether Mr. Sanchez-Juarez’s other arguments might have merit. Rather, we remand to the district court with instructions to vacate Mr. Sanchez-Juarez’s sentence and to resentence Mr. Sanchez-Juarez after considering his request that he receive a sentence below the applicable Guidelines range. In doing so, we in no way intend to express an opinion in regard to what the ultimate sentence should or should not be. CONCLUSION For the foregoing reasons, we REMAND to the district court with instructions to VACATE Mr. Sanchez-Juarez’s sentence and to resentence him following a hearing. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without oral argument. . Booker also excised 18 U.S.C. § 3742(e), which provided for de novo review of departures granted in accord with § 3553(b)(1). Booker, 543 U.S. at 259, 125 S.Ct. 738. .The Second, Third, Seventh, Eighth, and Eleventh Circuits have reached this conclusion. See United States v." }, { "docid": "20649206", "title": "", "text": "a sentence concurrently, partially concurrently, or consecutively under § 5G1.3(c) is to “achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparities.” The sentencing guidelines create a procedure for determining the “reasonable incremental punishment.” First, the court should consider the statutory factors under 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)). U.S.S.G. § 5G1.3, cmt. n. 3. The § 3553(a) factors also guide the appellate courts in determining whether the imposed sentence was reasonable. United States v. Yahnke, 395 F.3d 823, 824 (8th Cir.2005). Second, the court should consider the type and length of the prior undischarged sentence. U.S.S.G. § 5G1.3, cmt. n. 3. Third, the court should consider the time served on the undischarged sentence and the time likely to be served before release. Id. The fourth consideration is whether the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court. Id. Finally, the district court should consider any other circumstance relevant to the determination of an appropriate sentence for the instant offense. Id. The district court considered these factors and used its discretion to impose a consecutive sentence. This was not an abuse of discretion. See Shafer, 438 F.3d at 1227. Mathis does not argue the length of his sentence, which was within the advisory guideline range, was unreasonable. Rather, he contends imposition of a consecutive sentence is unreasonable because it was greater than necessary to satisfy 18 U.S.C. § 3553(a). When applying the factors under 18 U.S.C. § 3553(a), a district court is not required to recite categorically each statutory factor, as long as it is clear the factors were considered. United States v. Walker, 439 F.3d 890, 892 (8th Cir.2006). Here, as in Walker, the district court acknowledged it was required to consider the § 3553(a) factors and confirmed it did consider them. Mathis claims the consecutive federal sentence runs contrary to the state court judge’s intent to have all sentences run concurrently. Despite Mathis labeling this a “slap in the face” to the state court" }, { "docid": "22201012", "title": "", "text": "arguments might have merit. Rather, we remand to the district court with instructions to vacate Mr. Sanchez-Juarez’s sentence and to resentence Mr. Sanchez-Juarez after considering his request that he receive a sentence below the applicable Guidelines range. In doing so, we in no way intend to express an opinion in regard to what the ultimate sentence should or should not be. CONCLUSION For the foregoing reasons, we REMAND to the district court with instructions to VACATE Mr. Sanchez-Juarez’s sentence and to resentence him following a hearing. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This cause is therefore ordered submitted without oral argument. . Booker also excised 18 U.S.C. § 3742(e), which provided for de novo review of departures granted in accord with § 3553(b)(1). Booker, 543 U.S. at 259, 125 S.Ct. 738. .The Second, Third, Seventh, Eighth, and Eleventh Circuits have reached this conclusion. See United States v. Fernandez, 443 F.3d 19, 25-26 (2d Cir.2006) (\"We hold that when a defendant challenges the procedures of his sentencing proceeding or the reasonableness of the sentence imposed, he effectively claims that the sentence, whether a Guidelines sentence or a non-Guidelines sentence, was 'imposed in violation of the law.’ ”); United States v. Boscarino, 437 F.3d 634, 637 (7th Cir.2006) (\"After Booker, ... an 'unreasonable' sentence is an unlawful sentence, and § 3742(a)(1) authorizes [its] correction....”); United States v. Cooper, 437 F.3d 324, 327 (3d Cir.2006) (\"We believe an unreasonable sentence is 'imposed in violation of law.’ ”); United States v. Martinez, 434 F.3d 1318, 1322 (11th Cir.2006) (\"[W]e conclude that a post-Booker appeal based on the unreasonableness’ of a sentence, whether within or outside the advisory guidelines range, is an appeal asserting that the sentence was imposed in violation of law pursuant to § 3742(a)(1).”); United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir.2006) (reaffirming prior post-Booker holding that \"an unreasonable sentence would be 'in violation of law’ and subject to review under 18" }, { "docid": "22738686", "title": "", "text": "Sharkey’s argument that the Booker line of cases provides a separate basis for relief under § 3582(c)(2). See United States v. Price, 438 F.3d 1005, 1007 (10th Cir.2006). Section 3582(c) allows the court to modify a sentence in only three limited circumstances, including: (1) on motion of the Director of the Bureau of Prisons if special circumstances exist; (2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the sentencing range is subsequently lowered by the Sentencing Commission. We explained in Price that “even if Booker could be read to be an implicit lowering of [defendant’s] sentencing range, § 3582(c)(2) only expressly allows a reduction where the Sentencing Commission, not the Supreme Court, has lowered the range.” Id. Thus, “Booker does not provide a basis for a sentence reduction under § 3582(c)[ (2) ].” Id. Like Booker, the rule in Kimbrough also originated with the Supreme Court and not the Sentencing Commission. As a result, Kimbrough is also not a basis for relief under § 3582(c)(2), which permits a reduction in sentence only if consistent with Sentencing Commission policy statements. III. Conclusion The district court correctly interpreted Amendment 706, and did not abuse its discretion when it denied Sharkey’s 18 U.S.C. § 3582(c)(2) motion. AFFIRMED. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument. . This section is adapted from the district court’s memorandum and order denying Sharkey’s motion. See United States v. Shar- key, No. 02-40145-01-SAC, 2008 WL 1766966 (D.Kan. Apr.15, 2008) (district court memorandum and order denying Sharkey's § 3582 motion). Sharkey does not contend the district court was in error in its recitation of the factual and procedural history of his case." }, { "docid": "12077315", "title": "", "text": "3582(c). See Smartt, 129 F.3d at 541 (“Unless the basis for resentencing falls within one of the specific categories authorized by section 3582(c), the district court lacked jurisdiction to consider [the defendant’s] request.”); 18 U.S.C. § 3582(c) (restricting the modification of an imposed term of imprisonment to limited circumstances); see also Sharkey, 543 F.3d at 1239 (“Section 3582(c) allows the court to modify a sentence in only three limited circumstances, including: (1) on motion of the Director of the Bureau of Prisons if special circumstances exist; (2) if otherwise expressly permitted by statute or Federal Rule of Criminal Procedure 35; or (3) if the sentencing range is subsequently lowered by the Sentencing Commission.”). And finally, “[t]here is no constitutional right to counsel beyond the direct appeal of a criminal conviction.... ” Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir.2008). Given that Brown’s request for sentencing reduction is clearly contrary to the Sentencing Commission’s policy statement, the district court did not abuse its discretion in ruling on Brown’s motion without the appointment of counsel or an evidentiary hearing. III. Conclusion The district court correctly interpreted Amendment 706, and did not abuse its discretion when it denied Brown’s 18 U.S.C. § 3582(c)(2) motion. See Smartt, 129 F.3d at 540 (dictating de novo review of a district court’s interpretation of a statute or the Sentencing Guidelines); Dorrough, 84 F.3d at 1311 (noting that the “retroactive application of a change in the offense level of the Sentencing Guidelines is not required ... but rather falls within the district court’s discretion”). AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument. . Brown's conviction and sentence were affirmed on direct appeal. United States v. Brown, 212 F. App’x 736, 2007 WL 64835 (10th Cir.2007) (unpublished). . This Sentencing Guidelines range of 235 to 293 months' imprisonment resulting from an offense level of 38 was Brown’s \"applicable guideline range\" as referenced" }, { "docid": "22635443", "title": "", "text": "sentence must first consider, inter alia, (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense; and (4) the kinds of sentences and sentencing range established by the Guidelines, and in the case of a violation of supervised release, the applicable Guidelines or policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3553(a). We cannot say that the district court acted unreasonably when, after Sweeting violated his supervised release by committing a controlled substance offense punishable by a term of imprisonment exceeding one year, the court sentenced him to two years imprisonment. First, Sweeting admitted that he violated the conditions of his supervised release, therefore the district court acted within its discretion when it revoked his release. See 18 U.S.C. § 3583(e). Second, the district court sentenced Sweeting to 24 months imprisonment, which is below the recommended Guideline imprisonment range of 33 to 41 months and within the statutory maximum sentence for a Class B or C felony. U.S.S.G. § 7B1.4(a); 18 U.S.C. § 3583(e). Third, the district court adequately considered the § 3553(a) factors in arriving at Sweeting’s sentence, including his criminal history and his threat to the public. Fourth, the district court acted within its discretion when it imposed a consecutive sentence. See United States v. Quinones, 136 F.3d 1293, 1295 (11th Cir.1998) (Whether terms of supervised release are to be served concurrently or consecutively is “a question that [18 U.S.C.] § 3584(a) entrusts to the [district] court’s discretion.”). In sum, Sweeting’s 24 month consecutive sentence was within the applicable statutory maximum, the recommended Guideline range, and was reasonable in light of the evidence of his conduct while on supervised release. Accordingly, we affirm Sweeting’s sentence. AFFIRMED. . Various panels of this circuit have also concluded as much, albeit in unpublished opinions. See, e.g., United States v. Livingston, 140 Fed.Appx. 886 (11th Cir.2005) (per curiam); United States v. Powell, 163 Fed.Appx. 765, No. 04-15706, 2005" }, { "docid": "2424534", "title": "", "text": "MURPHY, Circuit Judge. I. INTRODUCTION After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The court therefore honors the parties’ requests and orders the case submitted without oral argument. This appeal arises from a consolidated action in the district court to revoke, pursuant to 18 U.S.C. § 3583(e)(3) and (g), Dan T. Rose’s concurrent terms of supervised release. After a hearing on the matter, the district court concluded that Rose had violated the conditions imposed on each term of supervised release. Accordingly, the district court revoked both terms of supervised release, sentenced Rose to a term of imprisonment of twenty-four months in each case, and ordered that the terms of imprisonment be served consecutively. Rose appeals, contending that the district court failed to consider on the record the statutorily mandated factors set out in 18 U.S.C. § 3553(a) when it imposed consecutive, rather than concurrent terms of imprisonment. See 18 U.S.C. § 3584(b) (“The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider, as to each offense for which a term of imprisonment is being imposed, the factors set forth in section 3553(a).”). Rose further contends that the district court failed to state in open court the reason for imposing consecutive sentences as required by 18 U.S.C. § 3553(c). Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, this court vacates and remands to the district court to state on the record pursuant to § 3553(c) its reasons for imposing consecutive sentences. II. BACKGROUND In 1991, Rose pleaded guilty in the Eastern District of Oklahoma to a single count of interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952 (the “Oklahoma Case”). The district court sentenced Rose to a sixty-month term of incarceration to be followed by three years of supervised release. The next year, Rose pleaded guilty in the Western District of North Carolina to a single count" }, { "docid": "23072183", "title": "", "text": "the court may impose a sentence concurrently, partially concurrently, or consecutively to the undischarged term of imprisonment. In order to achieve a reasonable incremental punishment for the instant offense and avoid unwarranted disparity, the court should consider the following: (i) the factors set forth in 18 U.S.C. § 3584 (referencing 18 U.S.C. § 3553(a)); (ii) the type (e.g., determinate, indeterminate/parolable) and length of the prior undischarged sentence; (iii) the time served on the undischarged sentence and the time likely to be served before release; (iv) the fact that the prior undischarged sentence may have been imposed in state court rather than federal court, or at a different time before the same or different federal court; and (v) any other circumstance relevant to the determination of an appropriate sentence for the instant offense. U.S.S.G. § 5G1.3 application note 3(A) (2007). Application Note 3(C) further provides that when a defendant is on federal or state parole or supervised release at the time of the instant offense, “the Commission recommends that the sentence for the instant offense be imposed consecutively to the sentence imposed for the revocation.” U.S.S.G. § 5G1.3 application note 3(C). When “a district court has considered the factors listed in 18 U.S.C. § 3553(a) and the applicable guidelines and policy statements in effect at the time of sentencing, the district court’s decision whether to impose a concurrent or consecutive sentence pursuant to § 5G1.3 is discretionary.” United States v. Watford, 468 F.3d 891, 916 (6th Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 2876, 167 L.Ed.2d 1155 (2007). A sentencing court does not abuse its discretion when it “makes generally clear the rationale under which it has imposed the consecutive sentence and seeks to ensure an appropriate incremental penalty for the instant offense.” United States v. Owens, 159 F.3d 221, 230 (6th Cir.1998), cert. denied, 528 U.S. 817, 120 S.Ct. 56, 145 L.Ed.2d 49 (1999). However, this is “not unfettered discretion,” and “the record on appeal should show that the district court turned its attention to § 5G1.3(e) and the relevant commentary in its determination of whether to impose a" }, { "docid": "301675", "title": "", "text": "HENRY, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to decide this case 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. At the end of the day, we are asked to determine whether a state misdemeanor conviction for attempted riot is an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). In November 2003, Mr. Hernandez-Rodriguez pleaded guilty to illegal reentry into the United States in violation of 8 U.S.C. § 1326. The district court sentenced Mr. Hernandez-Rodriguez to twenty-four months’ imprisonment, and thirty-six months’ supervised release. Mr. Hernandez-Rodriguez raises one issue on appeal — whether the district court erred in imposing an eight-level enhancement for previous conviction of an aggravated felony under United States Sentencing Guideline Manual § 2L1.2(b)(l)(C), because the offense meets the “crime of violence” definition in 18 U.S.C. § 16(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. Reviewing de novo the district court’s decision, we affirm. I. BACKGROUND Under the distended sentencing procedure required to analyze this case, we must look to a panoply of guidelines, statutes, and cases to determine the meaning of the terms at issue. First, pursuant to the guidelines, courts sentencing illegal re-entrants must “[ajpply the [gjreatest” of the following sentencing enhancements: “If the defendant previously was deported ... after: ... (C) a conviction for an aggravated felony, increase by 8 levels.” U.S. Sentencing Guidelines Manual 2L1.2(b)(l)(C). Unfortunately, this section does not define “aggravated felony.” In order to define the term, we must consult Application Note 2, which notes that “[f|or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in 8 U.S.C. § 1101(a)(43), without regard to the date of conviction of the aggravated felony.” Turning to this provision, an “aggravated felony” means “a crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(f). Mr. Hernandez-Rodriguez’s sentence of 365 days of imprisonment for the attempted riot conviction," } ]

[ { "docid": "16027344", "title": "", "text": "to continue payment of royalties after July 6, 1938. Under the second claim, plaintiff alleges that it is entitled to $28,179.63 awarded it by the arbitrator mentioned in the license contract. Clause 4 of the contract, under which plaintiff claims relief, provided that the arbitrator should be vested with sole authority and power to receive, consider and decide upon any complaint presented by either party claiming a violation of the license contract with respect to prices, terms of sale, and payment of royalties. If the arbitrator should find that the contract had been violated in any of these respects, he was authorized to assess as “liquidated damages,” and “not as a penalty,” not less than 100 per cent nor more than 500 per cent of the total royalty payments payable. In satisfaction of the judgment in the first Gabon Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co. suit, supra, Adams paid Gabon $19,825, representing unpaid royalties, and costs of $300.25. Shortly after this, plaintiff asked the arbitrator named in the contract to ascertain the amount of its alleged liquidated damages suffered by reason of defendant’s refusal to pay royalties until compelled to do so under the judgment. The arbitrator found plaintiff’s expenses in the suit to be $25,218.11 plus accrued interest on unpaid royalties of $1,925 and $103.65 costs, a total of $28,179.63, and awarded this amount to plaintiff as actual liquidated damages in the form of additional royalties. Defendant refused to participate in the arbitration and claimed that the award was of no effect. The District Court sustained defendant’s contention. Assuming the binding effect of the agreement to arbitrate, plaintiff did not see fit originally to avail itself of that remedy. Rather it brought suit. A right to arbitration arising out of mutual agreement, like any other contractual right, may be waived, amended or altered. The Belize, D.C., 25 F.Supp. 663, appeal dismissed 2 Cir., 101 F.2d 1005; Radiator Specialty Co. v. Cannon Mills, Inc., 4 Cir., 97 F.2d 318, 117 A.L.R. 299; La Nacional Platanera v. North American F. & S. S. Corp., 5 Cir.," } ]

[ { "docid": "18268755", "title": "", "text": "Marine holding surely mitigates against C&H’s argument that the waiver issue should be referred to arbitration. The Court has rejected that argument, however, and is deciding the issue tendered to it by the parties. As these cases reflect, courts must insure that duplication of effort in separate forums is minimized. If an objecting party can demonstrate concretely that such duplication would result from a belated attempt. to obtain a stay, prejudice will likely be found. E. g., Demsey, supra, 461 F.2d at 1018 (arbitration sought after case fully tried); American Locomotive v. Chemical Res. Corp., 171 F.2d 115, 118 (6th Cir. 1948) (stay sought after nearly eight years of protracted litigation), cert, denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 319 (4th Cir. 1938) (stay sought on day of trial). Mitsui has not made such a showing. Nor has the plaintiff shown that it will suffer concrete harm in the arbitration forum as a result of the litigation activity. It argues that the defendants have gained an unwarranted advantage through discovery, but does not show how the documents it produced will impair its case in arbitration. See Shinto Shipping, supra, 572 F.2d at 1330. It has not shown, moreover, that these materials would have been unavailable to defendants through the arbitration process. If discovery had been substantial, the Court might presume that prejudice exists. See Liggett & Myers, Inc. v. Bloomfield, 380 F.Supp. 1044, 1047-48 (S.D.N.Y.1974) (thousands of pages of deposition testimony and hundreds of documents). But the Court cannot base such a presumption on the limited discovery that has occurred to date. If the discovery record is sparse, an objecting party must show specifically how its case has been impaired. Absent such a showing, the strong policy favoring arbitration controls. The law is clear that waiver “is not to be lightly inferred.” Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). See Hilti, Inc., supra, 392 F.2d at 372 n.9 (“The cases demonstrate with marked consistency the reluctance of courts to find default" }, { "docid": "152812", "title": "", "text": "two main issues before the Court: 1. Is the question of waiver for the Court or for the arbitrators to determine ; and 2. If the Court is to determine waiver, does petitioner’s action in the Spanish proceedings constitute a waiver of arbitration. As to the first issue, the decisions of this Circuit have presented varying views. Compare World Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362 (2d Cir. 1965), with Chatham Shipping Co. v. Fertex S.S. Corp., 352 F.2d 291 (2d Cir. 1965). However, the decisions can be reconciled. In the World Brilliance decision, supra, the Court held that the issue of waiver is for the determination of the arbitrators. There, the defense of waiver was based on petitioner’s failure to seek arbitration within the time specified in the contract. In the Chatham Shipping case, supra, the respondent based its claim of waiver on the filing of a libel by the shipowner and the subsequent demand for arbitration by the same party. The Court, without directly addressing itself to the question of whether the issue of waiver is to be determined by the arbitrator, found that, in fact, there was no waiver by the filing of the libel. From this and the following decisions, I conclude that the issue of waiver, at least where it is based on the commencement of other Court action, is for the Court to determine. See Cornell & Co. v. Barber & Ross Co., 360 F.2d 512 (D.C.Cir.1966); Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 161 A.L.R. 1420 (2d Cir. 1945); Graig Shipping Co. v. Midland Overseas Shipping Corp., 65 Ad. 924 (S.D.N.Y. April 5, 1966); Instituto Cubano de Establizacion del Azucar v. The S.S. Rodestar, 143 F.Supp. 599 (S.D.N.Y. 1956); cf. Nor-tuna Shipping Co. v. Isbrandtsen Co., 231 F.2d 528 (2d Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956); China Union Lines, Ltd. v. Steamship Co. of 1949, 136 F.Supp. 597 (S.D.N.Y.1955). Determination of waiver by other conduct would appear to be within the province of the arbitrator. See World Brilliance Corp. v. Bethlehem Steel Co.," }, { "docid": "5949892", "title": "", "text": "(2d Cir. 1942). Secondly, Vulcan has not even filed an answer in this suit. Courts in this circuit have consistently held that there is no waiver when a party demands arbitration for the first time in its answer. Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra; Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945); Kulukundis Shipping Co. v. Amtorg Trading Corp., supra. Three cases on which plaintiff heavily relies, wherein the Court found waiver, are distinguishable since the party seeking the stay had answered the complaint, interposed a counterclaim and had taken further steps leading toward trial before it moved for a stay. Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512 (1966); American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949): Radiator Snecialty Co. v. Can non Mills, 97 F.2d 318, 117 A.L.R. 299 (4th Cir. 1938). Thirdly, while the Court agrees that there was delay between the time this suit was commenced and the time when Vulcan first moved for a stay, it is established that delay alone in moving for an arbitration order will not amount to a default. Almacenes Fernandez, S. A. v. Golodetz, supra. Finally, an examination of Vulcan’s intervening steps since the commencement of the action cannot be considered as amounting to a waiver. See Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra. Soon after the suit was commenced, Vulcan moved to dismiss the complaint against it for lack of jurisdiction. But shortly thereafter, Vulcan agreed to hold its motion in abeyance so that plaintiff could complete discovery as to the jurisdictional facts. Hence, when plaintiff complains about extended discovery, it is really plaintiff’s own discovery, and not Vulcan’s, which delayed the progress of this law suit. In addition, it is important to realize that plaintiff’s action was one for a declaratory judgment — a judgment primarily declaring that it owed Borden nothing under its policies, but, secondarily, if the decision were otherwise, declaring its rights, if any, against" }, { "docid": "4197516", "title": "", "text": "infringement. While the court has no occasion to reconsider and in fact adheres to its views on that question, plaintiffs are likely correct in their assessment thay they have little to lose and perhaps much to gain by appellate review of the court’s construction of the franchise agreements. Had defendant sought arbitration promptly, plaintiffs could not have been placed in a position where they thought such appellate review was necessary. In sum, the court is satisfied that the elements of delay, prejudice and inconsistent action are too great in this case to avoid a finding of waiver. In particular, the court has not been pointed to and has found no authority for the proposition that one who answers, seeks summary judgment, and awaits the decision on such a motion to present the question of arbitration for the first time may then compel arbitration. Nor do we think that the filing of an amended complaint, which added no new causes of action, materially alters the situation, de spite the opportunity it has afforded defendant to plead anew. Accordingly, defendant’s motion must be, and hereby is, in all respects denied. So ordered. . Agreement of July 23, 1969 between Weight Watchers International, Inc. and Weight Watchers of Manitoba, Ltd., Sec. 9.1 at 6-7, Agreement of June 22, 1972 between Weight Watchers International, Inc. and Weight Watchers of Quebec, Ltd., Sec. 8.1 at 30. . American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 318-19 (6 Cir. 1950); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4 Cir. 1938); La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, 84 F.2d 881 (5 Cir. 1936); Liggett & Myers Incorporated v. Bloomfield, supra, 380 F.Supp. at 1047-48; United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833, 840 (S.D.N.Y.1966); Sucrest Corporation v. Chimo Shipping Limited, 236 F.Supp. 229 (S.D.N.Y.1964). . Demsey & Associates v. S. S. Sea Star, supra, 461 F.2d at 1018; Liggett & Myers Incorporated v. Bloomfield, supra. . Gutor International AG v. Raymond Packer Co., Inc., 493 F.2d 938, 945 (1 Cir. 1974); Burton-Dixie Corporation v. Timothy McCarthy" }, { "docid": "4197517", "title": "", "text": "anew. Accordingly, defendant’s motion must be, and hereby is, in all respects denied. So ordered. . Agreement of July 23, 1969 between Weight Watchers International, Inc. and Weight Watchers of Manitoba, Ltd., Sec. 9.1 at 6-7, Agreement of June 22, 1972 between Weight Watchers International, Inc. and Weight Watchers of Quebec, Ltd., Sec. 8.1 at 30. . American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 318-19 (6 Cir. 1950); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4 Cir. 1938); La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, 84 F.2d 881 (5 Cir. 1936); Liggett & Myers Incorporated v. Bloomfield, supra, 380 F.Supp. at 1047-48; United Nations Children’s Fund v. S/S Nordstern, 251 F.Supp. 833, 840 (S.D.N.Y.1966); Sucrest Corporation v. Chimo Shipping Limited, 236 F.Supp. 229 (S.D.N.Y.1964). . Demsey & Associates v. S. S. Sea Star, supra, 461 F.2d at 1018; Liggett & Myers Incorporated v. Bloomfield, supra. . Gutor International AG v. Raymond Packer Co., Inc., 493 F.2d 938, 945 (1 Cir. 1974); Burton-Dixie Corporation v. Timothy McCarthy Construction Company, supra, 436 F.2d at 408-09; Cornell & Company v. Barber & Ross Company, supra; E. I. du Pont de Nemours & Company v. Lyles & Lang Construction Company, 219 F.2d 328, 334 (4 Cir.) (dictum), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955); American Locomotive Co. v. Gyro Process Co., supra; American Locomotive Co. v. Chemical Research Corporation, 171 F.2d 115, 121-22 (6 Cir. 1948); cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7 Cir. 1942); Radiator Specialty Co. v. Cannon Mills, supra; La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, supra; Liggett & Myers Incorporated v. Bloomfield, supra; Graig Shipping Co. v. Midland Overseas Shipping Corporation, 259 F.Supp. 929 (S.D.N.Y.1966); United Nations Children’s Fund v. S/S Nordstern, supra; Instituto Cubano de Establizacion Del Azucar v. The S/S Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952); The" }, { "docid": "22317008", "title": "", "text": "almost nine months later, March 4, 1958. During this time settlement was discussed and Devonshire consented to an examination before trial of its President. Such examination was adjourned repeatedly and has not yet been taken. Lawrence also maintains it released certain information to Devonshire otherwise unavailable and that Devonshire tested the disputed goods. The delay in moving for a stay and these various intervening acts are asserted to constitute the waiver or default. Such a contention, however, is without merit under the decided cases. Devonshire has at no time acted in a manner inconsistent with its right to arbitrate. Lawrence was apprised of Devonshire’s intention to arbitrate from the time the answer was filed and the intervening steps taken with a view toward settlement can in no way affect Devon-shire’s rights. Indeed, considerably more significant intervening steps have not been regarded as amounting to a waiver. See Farr & Co. v. Cia Intercontinental De Navegacion De Cuba, S.A., 2 Cir., 1957, 243 F.2d 342; Almacenes Fernandez, S.A. v. Golodetz, supra; Kulukundis Shipping Co. S/A v. Amtorg Trading Corp., supra; Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, supra. In the instances where a waiver has been found the party seeking the arbitration generally first brought up the subject only after long delay or when the trial was near at hand. American Locomotive Co. v. Chemical Research Corp., 6 Cir., 1948, 171 F.2d 115, cer-tiorari denied 1949, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074; Radiator Specialty Co. v. Cannon Mills, Inc., 4 Cir., 1938, 97 F.2d 318, 117 A.L.R. 299; La Nacional Platanera, S.C.L. v. North American F. & S.S. Corp., 5 Cir., 1936, 84 F.2d 881. The claim that Devon-shire’s rejection of an offer by Lawrence to arbitrate also constituted a waiver is likewise lacking in substance in view of the conditional nature of the offer. Reversed with a direction to grant the stay. . Section 2 of the Act provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such" }, { "docid": "4197519", "title": "", "text": "Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion" }, { "docid": "152813", "title": "", "text": "the issue of waiver is to be determined by the arbitrator, found that, in fact, there was no waiver by the filing of the libel. From this and the following decisions, I conclude that the issue of waiver, at least where it is based on the commencement of other Court action, is for the Court to determine. See Cornell & Co. v. Barber & Ross Co., 360 F.2d 512 (D.C.Cir.1966); Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 161 A.L.R. 1420 (2d Cir. 1945); Graig Shipping Co. v. Midland Overseas Shipping Corp., 65 Ad. 924 (S.D.N.Y. April 5, 1966); Instituto Cubano de Establizacion del Azucar v. The S.S. Rodestar, 143 F.Supp. 599 (S.D.N.Y. 1956); cf. Nor-tuna Shipping Co. v. Isbrandtsen Co., 231 F.2d 528 (2d Cir.), cert. denied, 351 U.S. 964, 76 S.Ct. 1028, 100 L.Ed. 1484 (1956); China Union Lines, Ltd. v. Steamship Co. of 1949, 136 F.Supp. 597 (S.D.N.Y.1955). Determination of waiver by other conduct would appear to be within the province of the arbitrator. See World Brilliance Corp. v. Bethlehem Steel Co., supra; Reconstruction Fin. Corp. v. Harrisons & Crosfield, Ltd., 204 F.2d 366, 37 A.L.R.2d 1117 (2d Cir.), cert. denied, 346 U.S. 854, 74 S.Ct. 69, 98 L.Ed. 368 (1953); Lowry & Co. v. Steamship Le Moyne D’Iberville, 253 F.Supp. 396 (S.D.N.Y.1966); Sucrest Corp. v. Chimo Shipping Ltd., 236 F.Supp. 229 (S.D.N.Y.1964). Having thus determined that the Court is to decide the issue of waiver here, I now turn to the second posed question: Does petitioner’s action in the Spanish proceedings constitute a waiver of arbitration ? In Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959), appeal dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960), Judge Medina stated that, “[A]ny doubts as to the construction of the [United States Arbitration] Act ought to be resolved in line with its liberal policy of promoting arbitration * * * to accord with the original intention of the parties * * The Court further declared that no waiver can be found unless the party acts in a manner inconsistent with" }, { "docid": "16683893", "title": "", "text": "usually a defendant, has waived its arbitration right, federal courts typically have looked to whether the party has actually participated in the lawsuit or has taken other action inconsistent with his right, Cornell & Company v. Barber & Ross Company, supra, 360 F.2d at 513; whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff, Cornell & Company, 242 F.Supp. at 826 (D.D.C.), aff’d, 360 F.2d 512; whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand, General Guaranty Ins. Co. v. New Orleans General Agency, Inc., 427 F.2d 924, 928 n.4 (5th Cir.); Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 413 (2d Cir.), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37; American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115, 121 (6th Cir.), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074; E. T. Simonds Const. Co. v. Local 1330 of Int. Hod Carriers, etc., 315 F.2d 291 (7th Cir.); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4th Cir.). Other relevant factors are whether the defendants have invoked the jurisdiction of the court by filing a counterclaim without asking for a stay of the proceedings, American Locomotive Co. v. Chemical Research Corp., supra, 171 F.2d at 121; Radiator Specialty Co. v. Cannon Mills, supra, 97 F.2d at 319; Hilti, Inc. v. Oldach, 392 F.2d 368, 370-71, 372 n.9 (1st Cir.); whether important intervening steps [e. g., taking advantage of judicial discovery procedures not available in arbitration, see Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n.7 (2d Cir.)] had taken place, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir.); and whether the other party was affected, misled, or prejudiced by the delay, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d at 989; Local 198, United Rubber, C. L. & P. Wkrs. v." }, { "docid": "22158068", "title": "", "text": "Overseas Shipping Corp., 259 F.Supp. 929 (S.D.N.Y.1966). . Appellees cite three cases in which waiver was found; all are distinguishable. Both Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 117 A.L.R. 299 (4th Cir. 1938), and The Belize (also cited as Rederiaktieselskabet Nidaros v. Steamship Owners Operating Co.), D.C., 25 F.Supp. 663, appeal dismissed, 101 F.2d 1005 (2d Cir. 1939), were distinguished in Kulukundis, supra, 126 F.2d at 989, on the ground that they involved waiver by a plaintiff who brought suit on a contract without seeking to avail himself of its arbitration clause “on the ground that a party should not thus first set in motion judicial proceedings and then arrest them.” Of course, in the instant case Cunard did “not first set in motion judicial proceedings.” And American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949) involved a long delay and extreme circumstances. See Petition of American Locomotive Co., 87 F.Supp. 754 (E.D.Mich.1949), aff’d, 185 F.2d 316 (6th Cir. 1950). See also Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 413 (2d Cir. 1959) (distinguishing American Locomotive Co. v. Chemical Research Corp.), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960)." }, { "docid": "16683894", "title": "", "text": "69 S.Ct. 515, 93 L.Ed. 1074; E. T. Simonds Const. Co. v. Local 1330 of Int. Hod Carriers, etc., 315 F.2d 291 (7th Cir.); Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318 (4th Cir.). Other relevant factors are whether the defendants have invoked the jurisdiction of the court by filing a counterclaim without asking for a stay of the proceedings, American Locomotive Co. v. Chemical Research Corp., supra, 171 F.2d at 121; Radiator Specialty Co. v. Cannon Mills, supra, 97 F.2d at 319; Hilti, Inc. v. Oldach, 392 F.2d 368, 370-71, 372 n.9 (1st Cir.); whether important intervening steps [e. g., taking advantage of judicial discovery procedures not available in arbitration, see Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n.7 (2d Cir.)] had taken place, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir.); and whether the other party was affected, misled, or prejudiced by the delay, Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d at 989; Local 198, United Rubber, C. L. & P. Wkrs. v. Interco, Inc., 415 F.2d 1208, 1211-12 (8th Cir.); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696. In Burton-Dixie, supra, the Fifth Circuit confronted the waiver issue in a context substantially similar to the present one. There defendant in its answer did not ask the court to stay proceedings pending arbitration, but rather denied liability, set up as an affirmative defense plaintiff’s failure to arbitrate, impleaded two third-party defendants, and proceeded to litigate the sub stantive dispute. The court concluded that the factfinder (there a jury) could reasonably find that defendant waived its right to insist on arbitration. Id., 436 F.2d at 409; see also American Locomotive, supra, at 115. Viewed against the above principles and decisions, we cannot say that the finding of waiver by defendants District Council and Local 1340 was clearly erroneous. We note the initial and consistent denial for one year of Local’s status as a party; the ambiguous or confusing ultimate stance on this point; defendants’ participation in numerous hearings, pretrial conferences, motions and other pleadings, and the deposing" }, { "docid": "21891864", "title": "", "text": "been prejudicial to the defendant and constitute a waiver of the arbitration provision, the existence of which was known from the very inception of the litigation. The motion of the Kobrin group is denied in all respects. . 15 U.S.C. § 78j(b) (1970). . 17 C.F.R. § 240.10b-5 (1973). . 318 F.Supp. 955 (S.D.N.Y.1970), aff’d on opinion below, 442 F.2d 1346 (2d Cir.), cert. denied, 404 U.S. 941, 92 S.Ct. 286, 30 L.Ed. 2d 254 (1971). . See Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 378 F.Supp. 112 (S.D.N.Y. 1974) ; Getter v. R. G. Dickinson & Co., 366 F.Supp. 559, 568-569 (S.D.Iowa 1973) ; Altman v. Liberty Equities Corp., 54 F.R.D. 620, 625 (S.D.N.Y.1972) ; deHaas v. Empire Petroleum Co., 286 F.Supp. 809, 815-816 (D.Colo.1968), modified on other grounds, 435 F.2d 1223 (10th Cir. 1970). . 318 F.Supp. at 958. . 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E. 2d 288 (1972). . Rubel v. Strackrow, 72 Misc.2d 734, 340 N.Y.S.2d 691 (Sup.Ct.1973). See also Herzfeld v. Laventhol, Krekstein, Horwath & Horwath, 378 F.Supp. 112 (S.D.N.Y.1974) ; Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134, 136 (1973). . Bloomfield cannot, of course, be compelled to arbitrate his 10b-5 claim. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). See also Laupheimer v. McDonnell & Co., 500 F.2d 21 (2d Cir. 1974). . Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) ; see Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; E. I. Du Pont de Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328, 334 (4th Cir.), cert. denied, 349 U.S. 956, 75 S.Ct." }, { "docid": "4197509", "title": "", "text": "468 F.2d 1064, 1068-69 (2 Cir. 1972). Here, the arbitration provisions are within contracts which, as is clear from the court’s review of the summary judgment motion, evidence extensive commercial dealings between the parties across international boundaries, including, inter alia, the granting of franchises by a New York corporation to foreign corporations, to be exercised in the foreign jurisdiction. That is sufficient to fall within the definition “commerce among the several States or with foreign nations” used in 9 U.S.C. § 1, also the definition of “commerce” for purposes of 9 U.S.C. § 2. Prima Paint Corp. v. Flood & Conklin Mfg. Co., supra. See Bigge Crane & Rigging Co. r. Docutel Corporation, 371 F.Supp. 240, 243 (E.D.N.Y.1973); Batson Yarn and Fabrics Machinery Group, Inc. r. Saurer-Allma GmbH-Allgauer Maschinenbau, 311 F.Supp. 68, 70 (D.S.C.1970). II. The more seriously contested issue here is waiver. Both sides acknowledge that the contractual right to arbitrate can be waived. Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2 Cir. 1972); Cornell & Company v. Barber & Ross Company, 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). Since there is a strong federal policy favoring arbitration, id., a waiver “is not to be lightly inferred, and mere delay in seeking a stay of the proceedings with out some resultant prejudice to a party . cannot carry the day.” Car-cich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2 Cir. 1968) (citation and footnotes omitted); Liggett & Myers Incorporated v. Bloomfield, 380 F.Supp. 1044, 1047 (S.D.N.Y.1974). And where, as here, the issue of waiver turns on the significance of actions taken in a judicial forum, the issue is one for the court, rather than the arbitrator, to decide. See In re Tsakalotos Navigation Corp., 259 F.Supp. 210, 213 (S.D.N.Y. 1966). General formulations of what constitutes a waiver in a particular case are of limited usefulness, as the decision normally turns not on some mechanical act but on all the facts of the case. Carolina Throwing Company v. S & E Novelty Corporation, 442 F.2d 329, 330-31 (4 Cir. 1971); Burton-Dixie Corporation v." }, { "docid": "4197518", "title": "", "text": "Construction Company, supra, 436 F.2d at 408-09; Cornell & Company v. Barber & Ross Company, supra; E. I. du Pont de Nemours & Company v. Lyles & Lang Construction Company, 219 F.2d 328, 334 (4 Cir.) (dictum), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955); American Locomotive Co. v. Gyro Process Co., supra; American Locomotive Co. v. Chemical Research Corporation, 171 F.2d 115, 121-22 (6 Cir. 1948); cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949); Galion Iron Works & Mfg. Co. v. J. D. Adams Mfg. Co., 128 F.2d 411, 413 (7 Cir. 1942); Radiator Specialty Co. v. Cannon Mills, supra; La Nacional Platanera, S.C.L. v. North American Fruit & Steamship Corporation, supra; Liggett & Myers Incorporated v. Bloomfield, supra; Graig Shipping Co. v. Midland Overseas Shipping Corporation, 259 F.Supp. 929 (S.D.N.Y.1966); United Nations Children’s Fund v. S/S Nordstern, supra; Instituto Cubano de Establizacion Del Azucar v. The S/S Rodestar, 143 F.Supp. 599 (S.D.N.Y.1956); Cargo Carriers v. Erie & St. Lawrence Corp., 105 F.Supp. 638 (W.D.N.Y.1952); The Belize, 25 F.Supp. 663 (S.D.N.Y.1938), appeal dismissed, 101 F.2d 1005 (2 Cir. 1939). . See Erving v. Virginia Squires Basketball Club, supra, 468 F.2d at 1068; ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, 422 F.2d 77, 82-83 (2 Cir. 1970); Carcich v. Rederi A/B Nordie, supra, 389 F.2d at 696; Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 412-13, (2 Cir. 1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, dismissed under Rule 60, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960); Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625, 627-28 (2 Cir. 1945); Kulukundis Shipping Co., S/A v. Amtorg Trading Corporation, 126 F.2d 978, 989-91 (2 Cir. 1942); Germany v. River Terminal Railway Company, 477 F.2d 546 (6 Cir. 1973); Howard Hill, Inc. v. George A. Fuller Company, Inc., 473 F.2d 217 (5 Cir. 1973); Hart v. Orion Insurance Company, 453 F.2d 1358, 1360-61 (10 Cir. 1971); Carolina Throwing Company v. S & E Novelty Corporation, supra; General Guaranty Insurance Company v. New" }, { "docid": "4197520", "title": "", "text": "Orleans General Agency, Inc., 427 F.2d 924 (5 Cir. 1970); Hilti, Inc. v. Oldach, 392 F.2d 368 (1 Cir. 1968); Reynolds Jamaica Mines v. La Societe Navale Caennaise, 239 F.2d 689, 692-93 (4 Cir. 1956); Macchiavelli v. Shearson, Hammill & Co., Incorporated, 384 F.Supp. 21, 26 (E.D.Cal.1974); Bigge Crane & Rigging Co. v. Docutel Corporation, supra, 371 F.Supp. at 244; Milton Schwartz & Associates, Architects v. Magness Corporation, 368 F.Supp. 749 (D.Del.1974); Batson Yarn and Fabrics Machinery Group, Inc. v. Saurer-Allma GmbH-Allgauer Maschinenbau, supra, 311 F.Supp. at 72-74; G. B. Michael v. SS Thanasis, 311 F.Supp. 170, 181-82 (N. D.Cal.1970); Commercial Metals Company v. International Union Marine Corporation, 294 F.Supp. 570, 573-74 (S.D.N.Y.1968); Mason v. Stevensville Golf and Country Club, Inc., 292 F.Supp. 348 (S.D.N.Y.1968); Lumbermens Mutual Casualty Company v. Borden Company, 268 F.Supp. 303, 311-13 (S.D.N.Y.1967); Necchi Sewing Machine Sales Corp. v. Carl, 260 F.Supp. 665, 667-69 (S.D.N.Y.1966); In re Tsakalotos Navigation Corp., supra, 259 F.Supp. at 212-14; Rootes Motors, Inc. v. Steamship Carina, 1964 A.M.C. 2754 (S.D.N.Y.); Cavac Compania Anonima Venezolana de Administracion y Comercio v. Board for Validation of German Bonds in United States, 189 F.Supp. 205, 208-10 (S.D.N.Y.1960); McElwee-Courbis Construction Co. v. Rife, 133 F.Supp. 790, 795 (M.D.Pa.1955); Harris Hub Bed & Spring Co. v. United Electrical, Radio & Machine Workers of America (U.E.), 121 F.Supp. 40, 42 (M.D.Pa.1954); Richard Nathan Corp. v. Diacon-Zadeh, 101 F.Supp. 428 (S.D.N.Y.1951). . Def. Reply Memo, at 3. . ITT World Communications, Inc. v. Communications Workers of America, AFL-CIO, supra, cited by defendant, is not on “all fours” with this case. There an answer had been filed and only a four-month delay ensued in seeking arbitration, during which plaintiff moved for summary judgment and defendant moved for a stay pending arbitration. The court found no waiver, as plaintiff “made no showing of prejudice resulting from the delay.” Id. at 83. Here, there is prejudice, a much longer delay, and unlike ITT, the party seeking summary judgment and arbitration are one and the same. A review of the other cases cited by defendant, included in n. 5 supra, reveals them all" }, { "docid": "21891865", "title": "", "text": "112 (S.D.N.Y.1974) ; Noble v. Desco Shoe Corp., 41 A.D.2d 908, 343 N.Y.S.2d 134, 136 (1973). . Bloomfield cannot, of course, be compelled to arbitrate his 10b-5 claim. Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). See also Laupheimer v. McDonnell & Co., 500 F.2d 21 (2d Cir. 1974). . Demsey & Associates v. S. S. Sea Star, 461 F.2d 1009, 1017 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968) ; see Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). . Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 (2d Cir. 1968). . See Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; E. I. Du Pont de Nemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328, 334 (4th Cir.), cert. denied, 349 U.S. 956, 75 S.Ct. 882, 99 L.Ed. 1280 (1955) ; Radiator Specialty Co. v. Cannon Mills, 97 F.2d 318, 319 (4th Cir. 1938) ; of. Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1017-1018 (2d Cir. 1972) ; Hilti, Inc. v. Oldach, 392 F.2d 368, 372 n. 9 (1st Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942) ; Milton Schwartz & Associates v. Magness Corp., 368 F.Supp. 749, 752 (D.Del.1974). But cf. Carolina Throwing Co. v. S. & E. Novelty Corp., 442 F.2d 329 (4th Cir. 1971). . See Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1018 (2d Cir. 1972) ; Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512, 513 (1966) ; Graig Shipping Co. v. Midland Overseas Shipping Corp., 259 F.Supp. 929, 931 (S.D.N.Y.1966) ; cf. Carcich v. Rederi A/B Nordie, 389 F.2d 692, 696 n. 7 (2d Cir. 1968) ; Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 n. 40 (2d Cir. 1942)." }, { "docid": "5949891", "title": "", "text": "The Belize, 25 F.Supp. 663, 664 (S.D. N.Y.1938), appeal dismissed, 101 F.2d 1005 (2d Cir. 1939) (per curiam), wherein the Court stated: “Where a party who has agreed to arbitrate any controversy that may arise prefers to take a controversy to court in the ordinary way, there comes a time in the course of the litigation when it would be unfair to permit one side to resort to arbitration over the protest of the other. That time is reached when the defendant files an answer on the merits, joining with plaintiff in rejecting arbitration and tendering the controversy to the court for trial.” Turning to the facts of the instant case, several things are apparent. In the first place, it was plaintiff, not Vulcan, who instituted the present suit. A Court should more easily find a waiver of arbitration by plaintiff since it is the plaintiff who has set the judicial machinery in motion in spite of the existence of an arbitration clause. See Kulukundis Shipping Co. v. Amtorg Trading Corp., 126 F.2d 978, 989 (2d Cir. 1942). Secondly, Vulcan has not even filed an answer in this suit. Courts in this circuit have consistently held that there is no waiver when a party demands arbitration for the first time in its answer. Robert Lawrence Co. v. Devonshire Fabrics, Inc., supra; Almacenes Fernandez, S. A. v. Golodetz, 148 F.2d 625 (2d Cir. 1945); Kulukundis Shipping Co. v. Amtorg Trading Corp., supra. Three cases on which plaintiff heavily relies, wherein the Court found waiver, are distinguishable since the party seeking the stay had answered the complaint, interposed a counterclaim and had taken further steps leading toward trial before it moved for a stay. Cornell & Co. v. Barber & Ross Co., 123 U.S.App.D.C. 378, 360 F.2d 512 (1966); American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949): Radiator Snecialty Co. v. Can non Mills, 97 F.2d 318, 117 A.L.R. 299 (4th Cir. 1938). Thirdly, while the Court agrees that there was delay between the time" }, { "docid": "22317009", "title": "", "text": "Amtorg Trading Corp., supra; Reynolds Jamaica Mines, Ltd. v. La Societe Navale Caennaise, supra. In the instances where a waiver has been found the party seeking the arbitration generally first brought up the subject only after long delay or when the trial was near at hand. American Locomotive Co. v. Chemical Research Corp., 6 Cir., 1948, 171 F.2d 115, cer-tiorari denied 1949, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074; Radiator Specialty Co. v. Cannon Mills, Inc., 4 Cir., 1938, 97 F.2d 318, 117 A.L.R. 299; La Nacional Platanera, S.C.L. v. North American F. & S.S. Corp., 5 Cir., 1936, 84 F.2d 881. The claim that Devon-shire’s rejection of an offer by Lawrence to arbitrate also constituted a waiver is likewise lacking in substance in view of the conditional nature of the offer. Reversed with a direction to grant the stay. . Section 2 of the Act provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” . Section 3 of the Act provides: “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” . For choice of law purposes it has been" }, { "docid": "16683892", "title": "", "text": "call for reversal of the trial court’s findings. Generally, the parties to a contract can agree to settle disputes arising thereunder by arbitration. Indeed, the federal policy is to promote industrial stabilization through the collective bargaining agreement, and a major factor in achieving industrial peace is the inclusion of a provision for arbitration of grievances in the agreement. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409. However, the right to arbitration, like any other contract right, can be waived. Cornell & Company v. Barber & Ross Company, 123 U.S.App. D.C. 378, 360 F.2d 512, 513 (D.C. Cir.), aff’g. 242 F.Supp. 825 (D.D.C.). There is no set rule as to what constitutes a waiver or abandonment of the arbitration agreement; the question depends upon the facts of each case and usually calls for a finding by the trier of the facts. Burton-Dixie Corp. v. Timothy McCarthy Const. Co., 436 F.2d 405, 408 (5th Cir.). In determining whether a party to an arbitration agreement, usually a defendant, has waived its arbitration right, federal courts typically have looked to whether the party has actually participated in the lawsuit or has taken other action inconsistent with his right, Cornell & Company v. Barber & Ross Company, supra, 360 F.2d at 513; whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit by the time an intention to arbitrate was communicated by the defendant to the plaintiff, Cornell & Company, 242 F.Supp. at 826 (D.D.C.), aff’d, 360 F.2d 512; whether there has been a long delay in seeking a stay or whether the enforcement of arbitration was brought up when trial was near at hand, General Guaranty Ins. Co. v. New Orleans General Agency, Inc., 427 F.2d 924, 928 n.4 (5th Cir.); Robert Lawrence Company v. Devonshire Fabrics, Inc., 271 F.2d 402, 413 (2d Cir.), cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37; American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115, 121 (6th Cir.), cert. denied, 336 U.S. 909," }, { "docid": "22158067", "title": "", "text": "a general denial and did not assert failure to arbitrate as an affirmative defense to the third-party’s first cause of action seeking indemnity for Cunard’s alleged breach of warranty of workman-like service; (2) supplied certain items to plaintiff as a result of a discovery order; (3) failed to object to the longshoreman’s note of issue; (4) attended three pre-trial conferences; and (5) permitted the case to proceed to the pre-trial order stage before serving notice of motion for a stay. . We recognize that in Calderon Cunard’s answer pleaded arbitration as an affirmative defense only with respect to one of the two causes of action in the third-party complaint. We do not find this fact determinative, however, since, as developed below, the shipowner was not prejudiced by Cunard’s delay in asserting its claim to arbitration. . Sufficient prejudice to infer waiver might be found, for example, if the party seeking the stay took advantage of judicial discovery procedures not available in arbitration. See Kulukundis, supra, 126 F.2d 989 n. 40; Graig Shipping Co. v. Midland Overseas Shipping Corp., 259 F.Supp. 929 (S.D.N.Y.1966). . Appellees cite three cases in which waiver was found; all are distinguishable. Both Radiator Specialty Co. v. Cannon Mills, Inc., 97 F.2d 318, 117 A.L.R. 299 (4th Cir. 1938), and The Belize (also cited as Rederiaktieselskabet Nidaros v. Steamship Owners Operating Co.), D.C., 25 F.Supp. 663, appeal dismissed, 101 F.2d 1005 (2d Cir. 1939), were distinguished in Kulukundis, supra, 126 F.2d at 989, on the ground that they involved waiver by a plaintiff who brought suit on a contract without seeking to avail himself of its arbitration clause “on the ground that a party should not thus first set in motion judicial proceedings and then arrest them.” Of course, in the instant case Cunard did “not first set in motion judicial proceedings.” And American Locomotive Co. v. Chemical Research Corp., 171 F.2d 115 (6th Cir. 1948), cert. denied, 336 U.S. 909, 69 S.Ct. 515, 93 L.Ed. 1074 (1949) involved a long delay and extreme circumstances. See Petition of American Locomotive Co., 87 F.Supp. 754 (E.D.Mich.1949), aff’d, 185" } ]

[ { "docid": "22610192", "title": "", "text": "that a single instruc tion to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. Boyd v. United States, 271 U. S. 104, 107 (1926). While this does not mean that an instruction by itself may never rise to the level of constitutional error, see Cool v. United States, 409 U. S. 100 (1972), it does recognize that a judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction. The Court of Appeals in this case stated that the effect of the instruction was to place the burden on respondent to prove his innocence. But the trial court gave, not once but twice, explicit instructions affirming the presumption of innocence and declaring the obligation of the State to prove guilt beyond a reasonable doubt. The Court of Appeals, recognizing that these other instructions had been given, nevertheless declared that “there was no instruction so specifically directed to that under attack as can be said to have effected a cure.” 476 F. 2d, at 847. But we believe this analysis puts the cart before the horse; the question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. This Court has recently held that the Due Process Clause requires the State in criminal prosecutions to prove guilt beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970). In that case the judge, presiding over the trial of a juvenile charged with stealing $112 from a woman’s pocketbook, specifically found that the evidence was sufficient to convict under a “preponderance of the evidence” standard but insufficient to" } ]

[ { "docid": "13670234", "title": "", "text": "not enter into the equation. In convicting Masoner of murder the jury clearly concluded beyond a reasonable doubt that he acted with malice. The absence of a malice requirement under Count II results from that offense having a less culpable mental state, not from a requirement that the defendant act nonmaliciously. Because a rational jury could have found a consistent set of facts supporting Masoner’s convictions on both Count I and Count II, due process does not require that we vacate Masoner’s murder conviction. Ill Masoner raises two challenges to the trial court’s jury instructions. He argues that the trial court gave an unconstitutionally vague definition of implied malice for second-degree murder, and that the trial court erred in instructing the jury that speeding constitutes an act that is inherently dangerous to human life. When a habeas petitioner asserts a due process violation on the basis of jury instructions, our review is limited to determining whether an allegedly defective jury instruction “so infected the entire trial that the resulting conviction violates due process.” It is not sufficient that the instruction is erroneous; rather the petitioner must establish that there was a reasonable likelihood that the jury applied the instruction in a way that violated a constitutional right. Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir.1992) (en banc) (Carriger) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993), quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see also Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (Boyde). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977). Thus, we consider Masoner’s contentions based on alleged erroneous jury instructions under a standard more deferential than plain error review, to determine whether it is reasonably likely" }, { "docid": "16117502", "title": "", "text": "at 321 n. 7, 105 S.Ct. 1965. The sentence immediately subsequent to the disputed phrase, stating that voluntary intoxication may reduce a murder from first degree to third degree, conceivably cured part of the problem. However, that explanation said nothing about the standard of proof required for intoxication. It did not explain that the Commonwealth was required to disprove intoxication beyond a reasonable doubt, or that Whitney did not have to prove intoxication beyond a reasonable doubt. See Humanik, 871 F.2d at 442-43. Thus, the Commonwealth’s claim that “given the court’s charge as a whole, no reasonable juror could possibly have concluded that Whitney could be found guilty of first degree murder only if he was intoxicated,” Appellants Br. at 69, misses the point. The problem is not only that a reasonable juror might have actually believed that to be the case. The greater problem is that it was reasonably likely that a juror believed that intoxication had to be established beyond a reasonable doubt and/or that the prosecution then had to disprove the defense by a lower standard of proof. It is unreasonable and improper to assume that lay persons can recognize that an incorrect standard of proof has been described in a jury instruction. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). However, expecting jurors’ “common sense” judgment to prevail over the court’s instructions would conflict with the presumption that juries follow their instructions. See Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We presume “that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instruction in a criminal case and strive to understand, make sense" }, { "docid": "2164163", "title": "", "text": "was intended and his action taken -with the intent that the act be encouraged or facilitated are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. sk ❖ And that using reasonably foreseeable there (sic) expressing the same test as natural and probable consequence is. Okay. This instruction was given at 10:55 a.m. Approximately five hours later the jury returned its verdict convicting Spivey of second degree murdér and assault. It is well settled that: In order to challenge a jury instruction on habeas, the [appellant] must prove that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The instruction must be viewed in the context of the entire trial and the jury instructions taken as a whole. See id. The relevant inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction” in an unconstitutional manner. Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Houston v. Roe, 177 F.3d 901, 908-909 (9th Cir.1999). Spivey contends that the trial court’s supplemental instruction, based on Croy, was an incorrect statement of law and allowed the jury to convict him even if they believed he did not know the specific criminal intent of Mitchell. Under People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318 (1984), Spivey argues, an aider and abettor “must share the specific intent of the perpetrator” and must “kno[w] the full extent of the perpetrator’s criminal purpose.” Beeman, 35 Cal.3d at 560, 199 Cal.Rptr. 60, 674 P.2d 1318. Thus, Spivey contends, the trial court misled the jury by instructing that the aider and abettor only needs to know that the perpetrator intend some “act which is criminal.” The trial court’s supplemental instruction was not an incorrect statement of law. In People v. Beardslee, 53 Cal.3d 68, 90," }, { "docid": "16473039", "title": "", "text": "541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004)). A jury instruction that shifts or relieves the state of its burden of proof also violates due process. Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court established the showing required to obtain habeas relief based on an incorrect jury instruction. Estelle made clear that “the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.” Id. at 71-72, 112 S.Ct. 475 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). Rather, we must consider “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Id. at 72, 112 S.Ct. 475 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (internal quotation marks omitted)). In doing so, it is incumbent upon the defendant to show that the challenged instruction “by itself so infected the entire trial that the resulting conviction violates due process.” Id. at 72, 112 S.Ct. 475 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). A challenge to a jury instruction is not to be viewed in “artificial isolation,” but rather must be considered within the context of the overall instructions and trial record as a whole. Id. The category of infractions that can render an entire trial fundamentally unfair is narrow. Id. at 72-73, 112 S.Ct. 475 (citing Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990)). C. Application Under Ohio’s statute for aggravated murder, the prosecution is charged with proving that the murder was committed “purposefully, and with prior calculation and design.” Ohio Rev.Code Ann. § 2903.01(A). As part of its instructions, the trial court provided the jury with an instruction titled “Causation,” which read as follows: The State charges that the act of the defendant caused the" }, { "docid": "19107890", "title": "", "text": "lying in wait and his act of shooting Johnson. That decision is supported by sufficient evidence introduced at trial. Because there is no clearly established federal law that requires reversal where state law provides a distinction between degrees of murder and an erroneous jury instruction blurs that distinction by increasing the burden on the government, the district court properly denied Houston’s petition. VI. Burden of Proof Houston argues that the district court’s jury instruction on special circumstances lying in wait unconstitutionally shifted the burden of proving the lack of a time gap to the defense. In order to challenge a jury instruction on habeas, the defendant must prove that “ ‘the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ ” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The instruction must be viewed in the context of the entire trial and the jury instructions taken as a whole. See id. The relevant inquiry is “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction’ ” in an unconstitutional manner. Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). It is beyond dispute that the government must prove every element of a crime beyond a reasonable doubt. Thus, a jury instruction that shifts the burden of proof on an element of the crime to the defendant violates due process. Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In this case, the jury was instructed that [i]f there is a clear interruption separating the period of lying in wait from the period during which the killing takes place, so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved. After reviewing the entire record, we agree with the well reasoned report and recommendation of Magistrate Judge Chapman that this instruction did not unconstitutionally" }, { "docid": "22197952", "title": "", "text": "lessens the crime to what is called, “voluntary manslaughter.’”” App. to Pet. for Cert. 33-34 (citations omitted). Respondent then sought federal habeas relief. The District Court denied her petition, but the Ninth Circuit reversed. 344 F. 3d 988 (2003). We now grant the State’s petition for a writ of certiorari and respondent’s motion for leave to proceed in forma pauperis, and reverse. II A federal court may grant habeas relief to a state prisoner if a state court’s adjudication of his constitutional claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. § 2254(d)(1). “Where, as here, the state court’s application of governing federal law is challenged, it must be~shown to be not only erroneous, but objectively unreasonable.” Yarborough v. Gentry, 540 U. S. 1, 5 (2003) (per curiam); see Williams v. Taylor, 529 U. S. 362, 409 (2000). In a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement. See Sandstrom v. Montana, 442 U. S. 510, 520-521 (1979). Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is “ ‘whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process.’ ” Estelle v. McGuire, 502 U. S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U. S. 141, 147 (1973)). “ ‘[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.’” Boyde v. California, 494 U. S. 370, 378 (1990) (quoting Cupp, supra, at 146-147). If the charge as a whole is ambiguous, the question is whether there is a “ ‘reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Estelle, supra, at 72 (quoting Boyde, supra, at 380). The Ninth Circuit held that the erroneous imminent-peril instruction “eliminated” respondent’s imperfect" }, { "docid": "21723932", "title": "", "text": "In considering whether the jury instructions in this case adequately conveyed this critical feature of Pennsylvania homicide law, we focus initially on the language that is claimed to be erroneous, but we must view this portion of the instructions “in the context of the charge as a whole.” See Smith, 120 F.3d at 411. “The proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instructions in a way that violates the Constitution.” Id. (emphasis in original, citations and internal quotation marks omitted); see Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In the present case, Bronshtein was charged, inter alia, with first degree murder and conspiracy to commit murder. As we hereafter explain, while the trial court’s instructions regarding the first degree murder charge were such that the jury could have convicted him of this charge without finding that he had a specific intent to kill Gutman, the court’s instructions regarding conspiracy to commit murder and the jury’s verdict of guilty on that charge demonstrate beyond a reasonable doubt that the jury made the required finding of specific intent. Accordingly, we conclude that any error in the first degree murder instructions was harmless. The trial judge instructed the jury that Bronshtein could be found guilty of first degree murder based on any of three separate theories. First, the trial judge charged the jury, Bronshtein could be found guilty as a principal if the jury found that “each and every element of [the crime] was established as to him specifically .... ” App. V, Pt. 2 at 1692. The trial court then correctly instructed the jury that the three elements needed to convict Bronshtein for the first-degree murder of Alexander Gutman were (1) that Gutman was killed, (2) that the defendant killed him, and (3) that the defendant did so with the specific intent to kill. Id. The trial judge also instructed the jury that Bronshtein could be found guilty as an accomplice of the person who actually killed Gutman but that, in order to do so, the" }, { "docid": "14096872", "title": "", "text": "immediately following the crime than they were fourteen months later at the trial, (T at 412), that the supplemental instructions advising the jury that they could consider the testimony of Fischler and Karatas about the petitioner’s presence in the King Kullen store on the night of March 7 allowed the jury to convict the petitioner based “only” on whether he was in the King Kullen on the earlier date, without reference to his presence in the store on the date of the crime, (Id at 425; Pet. Mem. at 64-66), that the “charge changed the theory of the prosecution’s case,” (Pet. Mem. at 65). Like claims about inadmissible evidence, claims based on errors in jury instructions are matters of state law that do not ordinarily raise federal constitutional questions. See McEachin v. Ross, 951 F.Supp. 478, 483 (S.D.N.Y.1997) (“Mere questions of state law are not grounds for federal habeas relief.”) (citing Estelle, 502 U.S. at 67-68, 112 S.Ct. 475). Errors in state jury charges are questions of state law and are therefore not reviewable on federal habeas corpus absent a showing that “the jury charge deprived the defendant of a federal constitutional right.” Id (citing Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990)). The standard of review of state jury instructions in a habeas petition is “not whether ‘the instruction is undesirable, erroneous or even universally condemned [but whether] the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Id (quoting Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978) (quoting Cupp v. Naughten, 414 U.S. 141, 146-7, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973))); see also Blazic, 900 F.2d at 541. Moreover, any allegedly erroneous jury instruction should be reviewed in light of the “well established proposition that a single instruction to a single jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp, 414 U.S. at 146-47, 94 S.Ct. 396. As a threshold matter, petitioner argues generally that the jury charge resulted in a denial of due process, but he" }, { "docid": "11002375", "title": "", "text": "request for a read-back of Officer Cecile’s testimony, and ground 33 alleges that the trial judge coerced the verdict by telling the jury that he “wanted the verdict back today.” The record reveals, however, that the jury did not request a read-back of testimony, but instead sought to obtain exhibits that had not been admitted into evidence. The trial judge properly excluded those exhibits from the jury’s review and properly offered transcripts of testimony. There is also no evidence that the trial judge demanded a verdict within a specific time frame. Therefore grounds 32 and 33 are dismissed. G. Errors In The Jury Instructions Grounds 23, 25, 27, 28, 30, 31, 35, 37, 40 and 41 of the petition allege that errors in the jury instructions denied petitioner due process. An erroneous state jury instruction is grounds for federal habeas relief only if it “ ‘so infected the entire trial that the resulting conviction violates due process.’ ” Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir.1990) (quoting Cupp. v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)); Estelle v. McGuire, 502 U.S. 62, 71-73, 112 S.Ct. 475, 482, 116 L.Ed.2d 385 (1991). In deciding whether a jury instruction violated due process, the Court must evaluate the instruction “ ‘in the context of the overall charge.’ ” Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir.1988) (quoting Cupp, 414 U.S. at 146-47, 94 S.Ct. at 400); McGuire, 502 U.S. at 71-73, 112 S.Ct. at 482. An omitted or incomplete jury instruction is less likely to violate due process than an instruction that misstates the law, Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737, 52 L.Ed.2d 203 (1977), and a proposed jury instruction that is not supported by the evidence need not be given. Blazic, 900 F.2d at 541. Petitioner argues in ground 23 that the trial court erred by not giving a missing witness charge. The alleged missing witness was Willie Lee, the man who.introduced Officer Ceeile to petitioner. Lee witnessed petitioner’s August 20, 1984 sale of marijuana to Officer Ceeile, but" }, { "docid": "23389016", "title": "", "text": "jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted), and therefore was not harmless. Moreover, it was objectively unreasonable for the state court to conclude otherwise, 3. Erroneous Jury Instructions Supreme Court precedent clearly establishes that “[i]n a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.” Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (citing Sandstrom v. Montana, 442 U.S. 510, 520-21, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). “The only question ... is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). Joseph’s jury-instruction claim is based, of course, on the erroneous principal-offender instruction. The Ohio Supreme Court’s rejection of Joseph’s claim was premised on the idea that because the trial court read the correct specification once, it cured any error in the instructions. Joseph II, 653 N.E.2d at 294-95. We conclude that this decision is both contrary to and an unreasonable application of clearly established federal law. The decision is contrary to Supreme Court precedent in that it ignored the approach that the Court has explicitly articulated for this type of claim. See Williams, 529 U.S. at 405, 120 S.Ct. 1495 (“A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.”). By excusing the error solely on the basis of the single instance in which the trial court read the correct specification, the state court “judged in artificial isolation” that one correct" }, { "docid": "19038103", "title": "", "text": "certain to be an adequate state bar. The district court correctly concluded that the government failed to meet its burden and that Townsend’s claims are not procedurally defaulted. We, therefore, address the merits of Townsend’s claims. C. Townsend’s Due Process Rights Townsend claims that he is entitled to habeas relief because the California trial court violated his Fourteenth Amendment due process rights when it instructed the jury on the crime of felony-murder, thus permitting the jury to convict him of second degree murder absent proof of malice aforethought. See Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (observing that “[t]he Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense.”). We affirm the denial of Townsend’s habeas claim based upon a violation of his due process rights. Federal habeas corpus relief is available to a state prisoner when it is shown that “a state court’s adjudication of his constitutional claim was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (quoting 28 U.S.C. § 2254(d)(1)). Here, Townsend challenges “the state court’s application of governing federal law,” and thus he is required to show that this application is “not only erroneous, but objectively unreasonable.” Id. (internal quotation marks and citations omitted). Due process requires that jury instructions in criminal trials give effect to the prosecutor’s burden of proving every element of the crime charged beyond a reasonable doubt. Id. at 437, 124 S.Ct. 1830. “Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Id. Federal habeas relief is available for jury instruction errors that “so infected the entire trial that the resulting conviction violates due process,” thus rendering the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385" }, { "docid": "14096873", "title": "", "text": "federal habeas corpus absent a showing that “the jury charge deprived the defendant of a federal constitutional right.” Id (citing Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990)). The standard of review of state jury instructions in a habeas petition is “not whether ‘the instruction is undesirable, erroneous or even universally condemned [but whether] the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’” Id (quoting Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir.1978) (quoting Cupp v. Naughten, 414 U.S. 141, 146-7, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973))); see also Blazic, 900 F.2d at 541. Moreover, any allegedly erroneous jury instruction should be reviewed in light of the “well established proposition that a single instruction to a single jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp, 414 U.S. at 146-47, 94 S.Ct. 396. As a threshold matter, petitioner argues generally that the jury charge resulted in a denial of due process, but he presents no “clearly established federal law” that the state court violated, and his claim must fail on that ground alone. Moreover, he is wrong in his allegation that the instructions were erroneous. Petitioner cites to no New York state cases that would support his claim that the instructions were erroneous, other than to claim that the overall “instruction on how the jury should evaluate the evidence offered by the State consisted on [sic] ‘bare-bones’, which in itself is a reversible error under state law.” (Pet. Mem. at 66) (citing People v. Gaines, 80 A.D.2d 561, 435 N.Y.S.2d 346 (N.Y.App.Div.1981) (holding that in the context of that case, “the trial court’s failure to give something more than a bare-bones charge on the sole issue of identification was error”)). Here, the jury instructions regarding identification were far from “bare-bones” and contained no apparent errors. The trial court instructed the jury that: [T]he People have the burden of proving to your satisfaction beyond a reasonable doubt not only all the essential elements of the crime, but also that" }, { "docid": "2724054", "title": "", "text": "reasonable doubt that the crime was committed, and that the defendant was an accomplice of the person who committed it. Williams argues that this instruction “unconstitutionally broadened the scope of accomplice liability” because it permitted the jury to find that he was an accomplice to first degree murder without finding that he possessed the specific intent to kill. If the theory of accomplice liability were a viable one in this case, Williams might have a point. But it is not. Accordingly, the trial court’s charge reveals no deficiency of constitutional dimension. To show that a jury instruction violates due process, a habeas petitioner must demonstrate both (1) that the instruction contained “some ‘ambiguity, inconsistency, or deficiency,’ ” and (2) that there was “ ‘a reasonable likelihood’ that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 129 S.Ct. 823, 831, 172 L.Ed.2d 532 (2009) (quoting Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) and Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Satisfaction of this two-part inquiry requires a federal habeas court to “focus initially on the specific language challenged,” Smith, 120 F.3d at 411 (citation and internal quotation marks omitted), and then to review the challenged instruction in the context of the entire charge and in light of the evidence and arguments presented at trial. Estelle, 502 U.S. at 72, 112 S.Ct. 475 (“[T]he instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973))); Waddington, 555 U.S. 179, 129 S.Ct. at 833 (analyzing accomplice liability charge in light of parties’ closing arguments). In this fashion, a due process analysis depends as much on the language of the court’s charge as it does on the particularities of a given case. In other words, the inquiry" }, { "docid": "13670235", "title": "", "text": "not sufficient that the instruction is erroneous; rather the petitioner must establish that there was a reasonable likelihood that the jury applied the instruction in a way that violated a constitutional right. Carriger v. Lewis, 971 F.2d 329, 334 (9th Cir.1992) (en banc) (Carriger) (citation omitted), cert. denied, — U.S. -, 113 S.Ct. 1600, 123 L.Ed.2d 163 (1993), quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); see also Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990) (Boyde). “The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment is even greater than the showing required to establish plain error on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736-37, 52 L.Ed.2d 203 (1977). Thus, we consider Masoner’s contentions based on alleged erroneous jury instructions under a standard more deferential than plain error review, to determine whether it is reasonably likely that the jury instructions resulted in a constitutional violation. A. Masoner argues that California’s implied malice jury instruction is unconstitutionally vague. Masoner contends that the phrase “high degree of probability that it will result in death” did not give the jury sufficient guidance to determine whether he acted with the requisite malice to be guilty of second-degree murder. The trial court instructed the jury: “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, ... or to put it another way ... the natural consequences of which are dangerous to life.” Masoner contends that this instruction is so vague as to violate due process, and that a writ of habeas corpus must issue because a “conviction should not rest on ambiguous and equivocal instructions to the jury on a basic issue.” United States v. Terry, 911 F.2d 272, 280 (9th Cir.1990), quoting United States v. Bagby, 451 F.2d 920, 927 (9th Cir.1971). In California, a defendant may be guilty of second degree" }, { "docid": "16473038", "title": "", "text": "trial court properly instructed the jury with respect to specific intent, it did not impermissibly lower the prosecution’s burden of proof by also including the instruction on foreseeability. Id. at *46. The state urges us to affirm this ruling, arguing that because the, Supreme Court has never invalidated this type of jury instruction on due process grounds, the state courts’ rulings cannot be contrary to or an unreasonable application of clearly established federal law. We agree. B. Legal Framework The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “Supreme Court precedent clearly establishes that, ‘[i]n a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.’ ” Joseph v. Coyle, 469 F.3d 441, 464 (6th Cir.2006) (quoting Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004)). A jury instruction that shifts or relieves the state of its burden of proof also violates due process. Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Supreme Court established the showing required to obtain habeas relief based on an incorrect jury instruction. Estelle made clear that “the fact that the instruction was allegedly incorrect under state law is not a basis for habeas relief.” Id. at 71-72, 112 S.Ct. 475 (citing Marshall v. Lonberger, 459 U.S. 422, 438 n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983)). Rather, we must consider “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Id. at 72, 112 S.Ct. 475 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990) (internal quotation marks omitted)). In doing so, it is incumbent" }, { "docid": "7216966", "title": "", "text": "see that the instruction did not apply to second degree murder. Judge Illston, in reviewing this petition in the district court, correctly analyzed this case under AEDPA, appropriately applying the deference that is due to the state court determination, as follows: This Court finds the Court of Appeal’s determination did not result in a decision that is contrary to, or involved an unreasonable application of clearly established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at trial. To obtain federal collateral relief for errors in the jury charge, petitioner must show that the ailing instruction so infected the entire trial that the resulting conviction violates due process. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). In reviewing an ambiguous instruction, the court must consider the context of the instructions as a whole and the trial record, and determine whether there is a “reasonable likelihood” that the jury has applied the challenged instruction in a way that violates the Constitution. See Estelle, 502 U.S. at 72 n. 4, 112 S.Ct. 475; Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). If so, the court must then decide whether the error had a substantial and injurious effect or influence in determining the jury’s verdict before granting relief in habeas proceedings. See Calderon v. Coleman, 525 U.S. 141, 145, 119 S.Ct. 500, 503, 142 L.Ed.2d 521 (1998); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993). This standard is met if the record on collateral review leaves the judge in “grave doubt” as to the effect of the constitutional error. See O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 994, 130 L.Ed.2d 947 (1995). Considering the instructions as a whole, this Court cannot say that there was a reasonable likelihood that the jury applied the challenged instruction in a way that violates" }, { "docid": "23389015", "title": "", "text": "was indicted for one asserted capital specification (being the principal offender in commission of the kidnapping) but convicted of another (being the principal offender in the commission of the aggravated murder). Indeed, the lack of notice is arguably even worse here, as Joseph was initially indicted under a specification that did not even exist. In granting relief on this claim, the district court, relying on United States v. Ford, 872 F.2d 1231, 1235-36 (6th Cir.1989) (explaining that an amendment to an indictment is prejudicial per se), cert. denied, 498 U.S. 843, 111 S.Ct. 124, 112 L.Ed.2d 93 (1990), held that the error in Joseph’s indictment was not subject to harmless-error review. The district court held in the alternative that the error was not harmless in this case. Given the Supreme Court’s decision in Esparza II (discussed above), we think it prudent to engage in the harmless-error analysis. For the reasons similar to those that have already been discussed above, we conclude that the due-process violation “had substantial and injurious effect or influence in determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted), and therefore was not harmless. Moreover, it was objectively unreasonable for the state court to conclude otherwise, 3. Erroneous Jury Instructions Supreme Court precedent clearly establishes that “[i]n a criminal trial, the State must prove every element of the offense, and a jury instruction violates due process if it fails to give effect to that requirement.” Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (citing Sandstrom v. Montana, 442 U.S. 510, 520-21, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). “The only question ... is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ It is well established that the instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of the instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted)" }, { "docid": "19038104", "title": "", "text": "constitutional claim was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) (quoting 28 U.S.C. § 2254(d)(1)). Here, Townsend challenges “the state court’s application of governing federal law,” and thus he is required to show that this application is “not only erroneous, but objectively unreasonable.” Id. (internal quotation marks and citations omitted). Due process requires that jury instructions in criminal trials give effect to the prosecutor’s burden of proving every element of the crime charged beyond a reasonable doubt. Id. at 437, 124 S.Ct. 1830. “Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation.” Id. Federal habeas relief is available for jury instruction errors that “so infected the entire trial that the resulting conviction violates due process,” thus rendering the trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The challenged jury instructions “may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record.” Id. (internal quotation marks and citation omitted). “If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Middleton, 541 U.S. at 437, 124 S.Ct. 1830. The law presumes that the jury follows the instructions given. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Townsend was charged with murder, and the state also alleged with specificity that he personally used a deadly and dangerous weapon, namely a knife, during the commission of the charged murder. Townsend’s defense was that he acted at most in the heat of passion or at least in self-defense. Townsend claims that, after the trial court instructed his jury on the elements of first and second degree murder and voluntary and involuntary manslaughter, it erroneously" }, { "docid": "16117503", "title": "", "text": "by a lower standard of proof. It is unreasonable and improper to assume that lay persons can recognize that an incorrect standard of proof has been described in a jury instruction. “Jurors do not sit in solitary isolation booths parsing instructions for subtle shades of meaning in the same way that lawyers might. Differences among them in interpretation of instructions may be thrashed out in the deliberative process, with commonsense understanding of the instructions in the light of all that has taken place at the trial likely to prevail over technical hairsplitting.” Boyde v. California, 494 U.S. 370, 380-81, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). However, expecting jurors’ “common sense” judgment to prevail over the court’s instructions would conflict with the presumption that juries follow their instructions. See Zafiro v. United States, 506 U.S. 534, 541, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We presume “that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instruction in a criminal case and strive to understand, make sense of, and follow the instructions given them.” Francis, 471 U.S. at 324 n. 9, 105 S.Ct. 1965. Accordingly, we agree with the district court’s conclusion that the trial court’s charge on voluntary intoxication was erroneous. C. Prejudice Of course, our conclusion that the charge was erroneous does not end our inquiry. Instructional errors must often be examined for harmless error before a defendant is entitled to relief. See Smith, 120 F.3d at 417 n. 5 (citing Kontakis v. Beyer, 19 F.3d 110, 116 (3d Cir.1994)). Accordingly, the harmless error test announced in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), bears on our analysis. Under Brecht, an error must have a “substantial and injurious effect or influence in determining the jury’s verdict” before it can be considered harmful and require relief. 507 U.S. at 632 n. 7, 113 S.Ct. 1710. Moreover, Whitney alleges not only that the jury instruction was unconstitutionally infirm, but also that counsel was ineffective for failing to object at trial. In order to establish ineffective assistance" }, { "docid": "7051468", "title": "", "text": "the district court did not err in denying habeas relief on this ground. F. The Jury Instruction on Accomplice Liability The general accomplice-liability jury instruction given in Rousan’s trial stated that “[a] person is responsible ... for the conduct of another person ... if, for the purpose of committing that offense, he aids or encourages the other person in committing it.” Rousan argues that .the jury could have used that instruction to ascribe to Rousan liability for Brent’s commission of first-degree murder without a finding that Rousan deliberated. To support a conviction for first-degree murder based on accomplice liability, the deliberation element cannot be imputed; the state had to prove deliberation by Rousan. State v. Rousan, 961 S.W.2d at 841. Where the defendant alleges that jury instructions may have been erroneously interpreted, the proper inquiry under federal law “is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In conducting this analysis, the jury instructions must be viewed as a whole. Id. at 378, 110 S.Ct. 1190. The instructions in this case are similar to those we considered in Johns v. Bowersox, 203 F.3d 538 (8th Cir.2000). The petitioner in Johns challenged a portion of the jury instructions that required the jury to find only that either the defendant or his accomplice acted with deliberation. Id. at 542-43. However, the verdict-directing instruction also required a finding “that with the purpose of promoting or furthering the commission of capital murder, the defendant acted together with or aided or encouraged [the accomplice] in committing that offense.” Id. at 543 (emphasis added). Applying the pre-AEDPA standard of review, we agreed with the Missouri Supreme Court that these instructions, viewed as a whole, “effectively required the jury to find deliberation” by the petitioner. Id. Similarly, in this case, the verdict-directing jury instructions for both first-degree murder counts required the jury to find that “the defendant aided, or encouraged [the murder] and did so after" } ]

[ { "docid": "22725543", "title": "", "text": "Opinion of the Court Darden, Judge: The Court selected this case for a grant of review to consider again the extent to which a law officer or a president of a special court-martial must question an accused about the latter’s actions and his understanding of the law applicable to these actions before accepting a guilty plea. Private Care pleaded guilty to desertion, in violation of Article 85, Uniform Code of Military Justice, 10 USC § 885. Under the terms of a pretrial agreement, the convening authority would approve no sentence in excess of a bad-conduct discharge, total forfeitures, and confinement at hard labor for two years, compared with the maximum sentence of a dishonorable discharge, total forfeitures,' arid confinement at hard labor for three years. Because of the guilty plea no evidence was presented; an absence of almost fifteen months terminated by apprehension was alleged. After the findings of, guilty and the sentence were approved by the board of review, this Court granted a petition for review on the issue of whether the plea of the accused was provident in view of the law officer’s failure to delineate the essential elements Of the offense and to determine the factual basis of the plea. After our grant of review, the accused submitted an affidavit asserting that his counsel did not specifically explain the elements of the offense to him;., that.he, bad denied any.intent to remain away permanently; that his counsel had told him a plea of not guilty would delay his trial for four months; that inevitably he would be convicted and receive the maximum sentence, but that a negotiated pretrial agreement could limit his confinement-sentence to two years; that this advice resulted in his pleading guilty; and that if he- were tried again he would plead not guilty. In a reply affidavit, Care’s trial de- • fense counsel insists that although he does not recall the specific words used in the first of at least six conferences with the accused before trial, he is certain that he followed a written guide or checklist he had prepared earlier to assure that" } ]

[ { "docid": "1083899", "title": "", "text": "to be sentenced by the military judge rather than a court with members. » The Elmore guidelines are also stated in the Green decision and provide the following rules: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. . In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. . . . ” The United States Court of Military Appeals gave as its policy considerations in the Green case for requiring a plea bargain inquiry the following reasons: “Judicial scrutiny of plea agreements at the trial level not only will enhance public confidence in the plea bargaining process, but also will provide invaluable assistance to appellate tribunals by exposing any secret understanding between the parties and by clarifying on the record any ambiguities which lurk within the agreements. More importantly, a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made. Finally we believe trial judges must share the responsibility, which until now has been borne by the appellate tribunals, to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness.” The military judge in our case did conduct a plea bargain inquiry and also fully satisfied the requirements then established in 1969 by the Care decision. The plea bargain inquiry portion of the trial included in part the following dialogue: “MJ: All right. Is there any pretrial agreement? TC: There is, Your Honor. Let the record reflect that I am handing to the military judge what has been marked" }, { "docid": "22838339", "title": "", "text": "the opportunity to make motions because he regarded the agreement, or any of its provisions, as prohibiting such action. From this record, therefore, the only reasonable conclusion we can draw is that defense counsel understood the provision according to its literal terms, and that it had no undisclosed meaning to him. Inasmuch as the provision imposes no unlawful restrictions, it cannot be regarded as contrary to public policy. We answer the certified issue in the negative, and reverse the decision of the Court of Military Review. The record is returned to the Judge Advocate General of the Army for resubmission to the court for further proceedings consistent with this opinion. . 23 U.S.C.M.A. 442 n., 50 C.M.R. 461 n., 1 M.J. 58 (1975). FLETCHER, Chief Judge (concurring in the result): The ambiguity and apparent hidden meanings which lurk within various pretrial agreement provisions such as the one presently before us as well as those in Holland and Kapp lead me to conclude that henceforth, as part of the Care inquiry, the trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. For Care inquiries conducted after the date of this opinion, I will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea. . United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R." }, { "docid": "1083898", "title": "", "text": "OPINION OF THE COURT MOUNTS, Judge: The issue to be decided in this case is whether the appellant’s plea of guilty was provident when analyzed under the guidelines established by the United States Court of Military Appeals in United States v. Green. In the Green case, the Court stated: “We will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused's plea . . .” We find that the military judge did conduct a plea bargain inquiry in our case. The inquiry, however, did not contain all of the specific areas of inquiry set out in Green. In Green the Court held: “We, therefore, hold that as part of the Care inquiries . . . , the trial judge shall ascertain whether a plea bargain exists and, if so, shall conduct an inquiry into the pretrial agreement in accordance with the Elmore guidelines previously enunciated. Inquiry into the actual sentence limitations specified in the plea bargain should be delayed until after announcing sentence where the accused elects to be sentenced by the military judge rather than a court with members. » The Elmore guidelines are also stated in the Green decision and provide the following rules: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. . In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. . . . ” The United States Court of Military Appeals gave as its policy considerations in the Green case for requiring a plea bargain inquiry the following reasons: “Judicial scrutiny of plea agreements at the trial level not only will enhance public confidence in the plea bargaining process, but also" }, { "docid": "23564922", "title": "", "text": "the date of this opinion, the trial judge shall ascertain whether a plea bargain exists and, if so, shall conduct an inquiry into the pretrial agreement in accordance with the Elmore guidelines previously enunciated. [Emphasis supplied] [United States v. Green, supra at 302, 52 C.M.R. at 13, 1 M.J. at 456]. As stated earlier, however, I find that the Green mandate was met in this case. Since the Elmore concurring opinion merely sets forth results to be obtained by trial judges, without spelling out the precise manner in which they will be achieved, I believe it incumbent upon this Court to immediately set forth procedures to be followed. Accordingly, in order to minimize further reversals at the highest level, henceforth, the Military Judge should conduct each pretrial agreement inquiry in accordance with the following procedure: 1. Ask the accused and his counsel if there is a pretrial agreement. 2. If there is an agreement, then view it in its entirety before findings when trial is before a court composed of members; otherwise, reserve inquiry into the sentence provisions until after imposition of sentence. 3. Go over each provision of the agreement with the accused (including, at the appropriate point in the proceedings, the sentence terms), paraphrase each in the judge’s own words, and explain in the judge’s own words the ramifications of each provision. 4. Obtain from the accused either his statement of concurrence with the judge’s explanation or his own understanding, followed by a resolution on the record of any differences. 5. Strike all provisions, with the consent of the parties, that violate either appellate case law, public policy, or the judge’s own notions of fundamental fairness; further, make a statement on the record that the judge considers all remaining provisions to be in accord with appellate case law, not against public policy, and not contrary to his own notions of fundamental fairness. 6. Ask trial and defense counsel if the written agreement encompasses all of the understandings of the parties, and conduct further inquiry into any additional understandings that are revealed. 7. Ask trial and defense counsel if" }, { "docid": "22374769", "title": "", "text": "absence of such agreements. Since we believe that the whole purpose of Green, as set forth earlier in this opinion, is thwarted unless its terms are strictly adhered to, we decline either to attempt to “fill in” a record left silent because of the trial judge’s omission or to develop a sliding scale analysis whereby “substantial compliance” becomes our standard for review. The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge PERRY concurs. . United States v. Elmore, 1 M.J. 262, 264 (1976) (Fletcher, C. J., concurring). . 1 M.J. 453, 456 (1976). . Id. . The parties agree that the Green requirements were not strictly met. . See United States v. Crowley, 3 M.J. 988 (A.C.M.R.1977) (en banc). Cf. United States v. Goode, 3 M.J. 532 (A.C.M.R.1977). . We have recently on two separate occasions specifically stressed the need for the trial judiciary to conduct this type of inquiry. See United States v. Lanzer, 3 M.J. 60 (C.M.A.1977), and United States v. Bertelson, 3 M.J. 314 (C.M.A.1977). . We feel that the propriety of such agreements will remain “a fertile source of appellate litigation” unless this procedure is retained as a mandatory portion of the trial judge’s inquiry. COOK, Judge (dissenting): We seem to have come to the point where the trial judge’s failure to dot every “i” and cross every “t” of the increasingly complicated trial procedure the Court is fashioning constitutes reversible error. I cannot accept that as principle, especially as this part of the present procedure is designed to assure an appellate court there are no secret “understandings” in connection with a pretrial agreement to plead guilty. This record leaves me convinced beyond a reasonable doubt that the error, if any, did not prejudice the accused. I would, therefore, affirm the decision of the Court of Military Review." }, { "docid": "22631659", "title": "", "text": "that Judge Hunt simply adjudged more severe, yet nevertheless appropriate, sentences than the convening authority was willing to approve. Because the statistics with regard to Judge Hunt establish no impropriety and more likely than not merely reflect a general sentencing policy which differs somewhat from that of the convening authority, we conclude that there is no evidence indicating a failure to adjudge a fair, impartial, and appropriate sentence in this instance. Even so, the general statistical data presented does illuminate a disturbing trend which should prompt every trial judge to reconsider the recommendation previously mentioned from the Military Judges’ Guide. Adherence to the procedure set forth therein will not affect the judge’s ability to determine the providence of a plea, yet it may enhance the perceived fairness of the sentencing process. II Our discussion thus far has focused upon limitations on the trial judge’s inquiry into the terms of a pretrial agreement. Of equal importance are his affirmative obligations insofar as negotiated pleas are concerned. In a concurring opinion in United States v. Elmore, 1 M.J. 262, 264-65 (1976), I observed that trial judges, as part of their inquiry into the providence of a guilty plea, should carefully inquire into the terms and conditions of any existing pretrial agreement: [T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. We are" }, { "docid": "22374766", "title": "", "text": "v. Elmore to insure that the propriety and meaning of the various plea bargain provisions would be satisfactorily set forth on the record: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain.” We expressed in Green these reasons for requiring this procedure as part of all plea bargain inquiries: Judicial scrutiny of plea agreements at the trial level not only will enhance public confidence in the plea bargaining process, but also will provide invaluable assistance to appellate tribunals by exposing any secret understandings between the parties and by clarifying on the record any ambiguities which lurk within the agreements. More importantly, a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made. See Article 45(a), Uniform Code of Military Justice, 10 USC § 845(a). Finally we believe trial judges must share the responsibility, which until now has been borne by the appellate tribunals, to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness. Our final conclusion was that [w]e will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea after the implementation date of" }, { "docid": "22374765", "title": "", "text": "Opinion of the Court FLETCHER, Chief Judge: The appellant was. convicted, pursuant to his pleas, of wrongful appropriation, two specifications of possession of marihuana, and two specifications of absence without leave in violation of Articles 121, 134, and 86, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 934, and 886, respectively. He was sentenced to a bad-conduct discharge, confinement at hard labor for 4 months, forfeiture of $75.00 pay per month for 4 months, and reduction to the grade of Private E-l. The convening authority approved the findings and sentence, but suspended execution of the confinement and forfeiture portions of the sentence in excess of 3 months. The United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority. We granted review to determine whether the military judge failed to satisfy the requirements of United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976), and, if so, the nature of the appropriate remedy. In Green we adopted the following guidance from United States v. Elmore to insure that the propriety and meaning of the various plea bargain provisions would be satisfactorily set forth on the record: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain.” We expressed in Green these reasons for requiring this procedure as part of" }, { "docid": "22374767", "title": "", "text": "all plea bargain inquiries: Judicial scrutiny of plea agreements at the trial level not only will enhance public confidence in the plea bargaining process, but also will provide invaluable assistance to appellate tribunals by exposing any secret understandings between the parties and by clarifying on the record any ambiguities which lurk within the agreements. More importantly, a plea bargain inquiry is essential to satisfy the statutory mandate that a guilty plea not be accepted unless the trial judge first determines that it has been voluntarily and providently made. See Article 45(a), Uniform Code of Military Justice, 10 USC § 845(a). Finally we believe trial judges must share the responsibility, which until now has been borne by the appellate tribunals, to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness. Our final conclusion was that [w]e will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea after the implementation date of this opinion. In the instant case the military judge failed to secure from the defense counsel as well as the prosecutor confirmation that the written agreement encompassed all of the understandings of the parties, and that the judge’s interpretation of the agreement comported with their understanding both as to the meaning and effect of the plea bargain. Hence, it is clear that the mandate of Green was not met, and we must determine whether, as suggested by the government, to adopt a different remedy than normally utilized in providence cases under United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Counsel urge that “substantial” compliance will suffice, and that we should not, absent a showing of a sub rosa agreement, declare a plea improvident because of a failure by the trial judge to strictly follow the procedure set forth in Green. This is unacceptable because it ignores the basic policies behind Green of requiring the trial judiciary to actively participate in and prepare a record for the appellate authorities which satisfactorily demonstrates the" }, { "docid": "23564936", "title": "", "text": "pursue the following action in an effort to shore-up the chaos pouring in on us with the expectation that the High Court would accept this as the more correct and reasonable solution to the present difficulties. I would exercise judicial insight and discrimination in determining whether to affirm those cases, tried prior to King (1977), where the military judge did, from all appearances, conduct an adequate inquiry into the providency of the pretrial agreement; yet, failed to technically abide by each and every one of the principles of the higher Court in Green to the effect that the military judge “should” secure assurance of trial and defense counsel that the pretrial agreement encompasses all the agreements and that all parties similarly interpret the agreement, and that he “should”, on his own, strike unfair provisions, etc. In cases tried immediately following King, I would use discretion to determine whether the military judge had reasonable time to become aware of the principles finally tidied up into a clear mandate by King. Additionally, I would request the Judge Advocate General to once again insure that the technical requirements of King are effectively promulgated to all members of the trial judiciary for compliance. I do not agree with the action of the majority in disseminating further guidelines of trial procedure before the smoke, dust, and debris aroused by this present controversy have subsided. This is an administrative matter extending to trial guides, procedures, etc., and one which might even require coordination. The majority has already stated that the mandate in Green is clear. Therefore, why additional guidelines? . The majority opinion seems to assert that Green was a clear mandate at the time of its publication, and then proceeds to misinterpret it. In Green at 302, 52 C.M.R. at 13, 1 M.J. at 456, the High Court said, “We will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea . . . Consequently, if the complete inquiry as purportedly required by the Green mandate is not conducted, then the plea, in the High Court’s" }, { "docid": "1185628", "title": "", "text": "inquire of counsel and the accused with regard to whether the terms of pretrial agreement with the convening authority were all inclusive; (2) he did not inquire of the accused and counsel that the agreement comported with his understanding thereof; and, (3) he did not inquire as to the accused’s understanding of the specific provisions of the sentence limitations approved by the convening authority. With regard to the military judge’s second and third errors as enumerated above, I consider the judge’s errors to be de minimus because he did review the quantum portion of the pretrial agreement after imposing sentence and ascertained to his own satisfaction that the plea bargain did not contain any matter which violated appellate case law or public policy. He did inquire of both counsel and the accused concerning their understanding of the conditions of the agreement and the sentence limitation and received on the record, their assurances that they understood the limitation on sentence, although not specifically inquiring into the actual limitation itself (suspension of confinement and forfeitures). The actual sentence limitation agreed upon by the parties is sufficiently simple that it is highly doubtful it could have been misunderstood under any circumstances. With regard to the first enumerated error, I note that the so called “sub rosa” agreements not specifically enumerated in pretrial agreements are a rare exception rather than the rule in the cases that come before us. Nevertheless, they do occasionally occur. Where, as here, there is a procedural error, I believe the accused should have the burden of establishing that the error resulted in some form of prejudice to him before he can hope to receive any judicial benefit arising therefrom. In the case before us, counsel has not demonstrated any prejudice flowing from this error and I would normally be inclined to view this error as harmless but for the language used by the author judge in United States v. Green, supra, to wit: “We will view a failure to conduct a plea bargain inquiry as a matter affecting providency of the accused’s plea after the implementation date of this" }, { "docid": "1185623", "title": "", "text": "OPINION COOK, Senior Judge: On 22 September 1976, appellant plead guilty to one specification of disrespect toward an officer and one specification of willful disobedience of an order, alleged as violations of Articles 89 and 90, Uniform Code of Military Justice (UCMJ) (10 U.S.C. §§ 889 and 890), respectively. The case was tried by a judge alone and appellant received the approved sentence noted above. On 13 August 1976, in United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976), the United States Court of Military Appeals decreed: “We, therefore, hold that as part of the Care inquiries conducted 30 days or more after the date of this opinion, the trial judge shall ascertain whether a plea bargain exists and, if so, shall conduct an inquiry into the pretrial agreement in accordance with the Elmore guidelines previously enunciated. Inquiry into the actual sentence limitations specified in the plea bargain should be delayed until after announcing sentence where the accused elects to be sentenced by the military judge rather than a court with members. We will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea after the implementation date of this opinion.” (Footnotes omitted). The “Elmore guidelines previously enunciated” appear earlier in the Green decision and read as follows: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with" }, { "docid": "22374768", "title": "", "text": "this opinion. In the instant case the military judge failed to secure from the defense counsel as well as the prosecutor confirmation that the written agreement encompassed all of the understandings of the parties, and that the judge’s interpretation of the agreement comported with their understanding both as to the meaning and effect of the plea bargain. Hence, it is clear that the mandate of Green was not met, and we must determine whether, as suggested by the government, to adopt a different remedy than normally utilized in providence cases under United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Counsel urge that “substantial” compliance will suffice, and that we should not, absent a showing of a sub rosa agreement, declare a plea improvident because of a failure by the trial judge to strictly follow the procedure set forth in Green. This is unacceptable because it ignores the basic policies behind Green of requiring the trial judiciary to actively participate in and prepare a record for the appellate authorities which satisfactorily demonstrates the absence of such agreements. Since we believe that the whole purpose of Green, as set forth earlier in this opinion, is thwarted unless its terms are strictly adhered to, we decline either to attempt to “fill in” a record left silent because of the trial judge’s omission or to develop a sliding scale analysis whereby “substantial compliance” becomes our standard for review. The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered. Judge PERRY concurs. . United States v. Elmore, 1 M.J. 262, 264 (1976) (Fletcher, C. J., concurring). . 1 M.J. 453, 456 (1976). . Id. . The parties agree that the Green requirements were not strictly met. . See United States v. Crowley, 3 M.J. 988 (A.C.M.R.1977) (en banc). Cf. United States v. Goode, 3 M.J. 532 (A.C.M.R.1977). . We have recently on two separate occasions specifically stressed the need for the trial judiciary" }, { "docid": "1083934", "title": "", "text": "terms of that opinion before he decided the question of providency and accepted appellant’s plea. In my view the requirements set out in the Green decision were simply intended as appendages to the already extant requirements laid down in United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Now, in addition to the Care inquiries directed to the accused about his actual criminal culpability and his appreciation concerning his waiver of certain constitutional safeguards, the trial judge must also explore the terms, and the accused’s understanding, of any plea bargain before he can decide to accept the accused’s plea. For me it follows that a failure by a trial judge to comply with this new requirement is to be treated on appeal just as Care advice omissions are treated. That is, the setting aside of any finding of guilty as to which the trial judge’s dereliction relates. II As I read the Green requirements, the trial judge, as part of the providency inquiry in a guilty plea case, 1. must assure on the record that the accused understands the meaning and effect of each condition in the pre-trial agreement, (emphasis from the Green decision), 2. must obtain the same assurance from the accused concerning the sentence limitations, 3. must secure from counsel for both sides their assurance that the written agreement incorporates all terms and conditions and, 4. must also secure counsel’s concurrence that his interpretation of the agreement comports with theirs. In the case sub judice, which was conducted after the effective date of the Green rule, the trial judge, after meeting the providency inquiry requirements specified in the Care decision (now to be found in paragraph 70b(2), change 1, MCM, 1969 (Rev.)), went on to explore the terms and conditions of the pretrial agreement. In order to meet the requirement that he assure on the record that the accused understands each condition of the agreement, the trial judge read each provision aloud to appellant with one marked exception. In three separate paragraphs in the agreement there appears an allusion to a written stipulation. In the first" }, { "docid": "1185624", "title": "", "text": "with members. We will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea after the implementation date of this opinion.” (Footnotes omitted). The “Elmore guidelines previously enunciated” appear earlier in the Green decision and read as follows: “[T]he trial judge must shoulder the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain.” The case sub judice was tried over 30 days after the Green decision and is therefore unequivocally subject .to its requirements. A search of the record in this case fails to reveal any effort by the trial judge to secure the assurances of both counsel concerning the all-inclusiveness of the written terms of the pretrial agreement nor does it reveal any colloquy with those counsel involving an interpretive understanding of the plea bargain. As I construe the Green decision, these two inquiries are additional mandatory requirements to those earlier imposed by United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Because this record is totally devoid of any appearance of compliance with this injunction, as would be the case in other Care violations, a rehearing is required. I also note that the Green requirement for the military judge to spread on the record that the accused understands the meaning and effect of the sentence limitations imposed by the pretrial agreement was not" }, { "docid": "16372135", "title": "", "text": "servicemembers are afforded their constitutional and statutory rights and to ensure finality of judgments, military law requires detailed inquiries concerning pretrial agreements and guilty pleas. To ensure the voluntariness of pleas and to prevent improper terms from being imposed as part of a pretrial agreement, this Court has held that the military judge must assure on the record that the accused understands the meaning and effect of each provision in the pretrial agreement; as well as make sure that the written agreement encompasses all the understandings of the parties and that they agree with his interpretation of the plea bargain. United States v. Jones, 23 MJ 305, 308 (CMA 1987), citing United States v. Green, 1 MJ 453 (CMA 1976). Additionally, the judge must ensure that his or her interpretation of the agreement comports with counsel’s interpretation. United States v. Jones, supra, citing United States v. King, 3 MJ 458 (CMA 1977). These Green/King requirements are codified in RCM 910(f)(4), Manual, supra. Pretrial agreements must be in writing and signed by the accused and defense counsel. RCM 705(d)(2). Failure to place the terms of the pretrial agreement in writing runs counter to the procedural regularity set up by this Court to guarantee constitutional rights and ensure finality of judgments. The Green/King requirements and RCM 910 are designed to prevent unwritten sub rosa agreements that would violate public policy. RCM 910(f)(3) states: Disclosure. If a plea agreement exists, the military judge shall require disclosure of the entire agreement before the plea is accepted, provided that in trial before military judge alone the military judge ordinarily shall not examine any sentence limitation contained in the agreement until after the sentence of the court-martial has been announced. In both United States v. Rivera, 46 MJ 52, 53 (1997), and Weasler, 43 MJ at 16, the pretrial agreements were in writing and disclosed as part of the providence inquiry. The poster at issue, seemingly written by a lawyer, seeks to negate many defense arguments in favor of rehabilitating drug users such as appellant. Even so, defense counsel did not explore the poster’s impact on" }, { "docid": "1185625", "title": "", "text": "their understanding of the meaning and effect of the plea bargain.” The case sub judice was tried over 30 days after the Green decision and is therefore unequivocally subject .to its requirements. A search of the record in this case fails to reveal any effort by the trial judge to secure the assurances of both counsel concerning the all-inclusiveness of the written terms of the pretrial agreement nor does it reveal any colloquy with those counsel involving an interpretive understanding of the plea bargain. As I construe the Green decision, these two inquiries are additional mandatory requirements to those earlier imposed by United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). Because this record is totally devoid of any appearance of compliance with this injunction, as would be the case in other Care violations, a rehearing is required. I also note that the Green requirement for the military judge to spread on the record that the accused understands the meaning and effect of the sentence limitations imposed by the pretrial agreement was not met in the instant case. The sole inquiry by the judge of the appellant concerning the quantum portion of the agreement consists of the following: “MJ: Now, Private Goode, there is another part of this agreement pertaining to sentence. Now I don’t want to know what that portion of the agreement is, but what I’m asking you is do you know what it is? ACC: Yes, sir. MJ: Are you satisfied with it? ACC: Yes, sir.” Even after the judge announced his sentence, and examined that part of the pretrial agreement pertaining to the sentence, he did not explore the matter further with appellant or his counsel. As stated earlier, this is, in my view, inadequate compliance with the dictates of United States v. Green, supra. The findings of guilty and the sentence are set aside and a rehearing may be ordered. . United States v. Elmore, 24 U.S.C.M.A. 81, 51 C.M.R. 254, 1 M.J. 262 (1976). . We recognize that minimal compliance would be acceptable. See United States v. Burton, 21 U.S.C.M.A. 112, 44" }, { "docid": "23564918", "title": "", "text": "BAUM, Judge: Appellant stands convicted of a 2 year unauthorized absence after pleading guilty pursuant to a pretrial agreement. He was sentenced by a special court-martial judge to a bad conduct discharge, confinement at hard labor for 3 months, and forfeiture of $100.00 per month for 3 months. The convening authority reduced the confinement to 75 days, in accordance with the pretrial agreement, and otherwise approved the sentence. At this level, appellant, citing United States v. Green, 24 U.S.C.M.A. 299, 52 C.M.R. 10, 1 M.J. 453 (1976) and United States v. Elmore, 24 U.S.C.M.A. 81, 51 C.M.R. 254, 1 M.J. 262 (1976), summarily assigns as error that his pleas of guilty were rendered improvident because of the military judge’s failure to properly and sufficiently inquire into the terms of the pretrial agreement. He has not specified wherein the inquiry is deficient, nor does he assert that he was misled, or that the convening authority failed to comply with the agreement. The military judge established that appellant understood all provisions of his pretrial agreement, including the sentence limitations. (R. 10,19, 20). In addition, the military judge received assurances from trial counsel and defense counsel that the written agreement encompassed all of the understandings of the parties. (R. 11). The military judge did not specifically ask trial counsel and defense counsel if their interpretation of the pretrial agreement agreed with his own. The pretrial agreement in this case, however, is clear and unambiguous. Since neither counsel objected to the military judge’s interpretation of the pretrial agreement, after hearing the judge’s discussion of the agreement with appellant, we conclude that their understanding of the meaning and effect of the plea bargain necessarily comported with that of the military judge. We find that the military judge’s inquiry fulfilled the requirements of United States v. Green, supra, and that appellant’s guilty pleas were voluntarily and providently made. The instant pretrial agreement inquiry leaves us with no gap in the record; in contrast with the situation in United States v. King, 3 M.J. 458 (C.M.A.1977), where the military judge failed to ask for and obtain from" }, { "docid": "23564919", "title": "", "text": "sentence limitations. (R. 10,19, 20). In addition, the military judge received assurances from trial counsel and defense counsel that the written agreement encompassed all of the understandings of the parties. (R. 11). The military judge did not specifically ask trial counsel and defense counsel if their interpretation of the pretrial agreement agreed with his own. The pretrial agreement in this case, however, is clear and unambiguous. Since neither counsel objected to the military judge’s interpretation of the pretrial agreement, after hearing the judge’s discussion of the agreement with appellant, we conclude that their understanding of the meaning and effect of the plea bargain necessarily comported with that of the military judge. We find that the military judge’s inquiry fulfilled the requirements of United States v. Green, supra, and that appellant’s guilty pleas were voluntarily and providently made. The instant pretrial agreement inquiry leaves us with no gap in the record; in contrast with the situation in United States v. King, 3 M.J. 458 (C.M.A.1977), where the military judge failed to ask for and obtain from both counsel confirmation that the written agreement encompassed all of the understandings of the parties. In such a case, silence would not assure that there were no sub rosa understandings, and a majority of the Court of Military Appeals declined to “fill in” a record left silent in this regard, and reversed. Those judges have made it clear that cases reaching them with such a gap will be reversed without regard to its prejudicial effect. In our view, however, the King decision does not deprive this Court or lower reviewing authorities of the right to obtain additional information, either through affidavits or an appropriate hearing, in order to meet our fact finding responsibilities and, thus, fill in asserted procedural gaps when actual prejudice has not been alleged. To interpret King otherwise would result in our being forced, contrary to Article 59(a, UCMJ, 10 U.S.C. § 859(a), to mechanistically reverse even those cases in which the failure to follow the Elmore guidelines constitutes quintessentially harmless error. I do not believe the Court of Military Appeals intended" }, { "docid": "22838340", "title": "", "text": "the primary responsibility for assuring on the record that an accused understands the meaning and effect of each condition as well as the sentence limitations imposed by any existing pretrial agreement. Where the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties. In addition to his inquiry with the accused, the trial judge should secure from counsel for the accused as well as the prosecutor their assurance that the written agreement encompasses all of the understandings of the parties and that the judge’s interpretation of the agreement comports with their understanding of the meaning and effect of the plea bargain. For Care inquiries conducted after the date of this opinion, I will view a failure to conduct a plea bargain inquiry as a matter affecting the providence of the accused’s plea. . United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975). . United States v. Kapp, 23 U.S.C.M.A. 442 n., 50 C.M.R. 461, n., 1 M.J. 58n (1975). . United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). FERGUSON, Senior Judge (dissenting): On the basis of the renewed effort by the military to exact from an accused an agree ment effecting restrictive orchestration of the exercise of trial rights and procedures, as evidenced in United States v. Holland, 23 U.S.C.M.A. 442, 50 C.M.R. 461, 1 M.J. 58 (1975), and the case at bar, I am more convinced than ever that: [Pjretrial agreements are properly limited to the exchange of a plea of guilty for approval of a stated maximum sentence. It may well be, as Judge Cook opines, though I am not so assured, that a legal technician might conclude that the condition herein of concern “imposes no condition upon an accused in the exercise of his rights, but expresses a truism as to the normal sequence of events at trial.” At least, it may well be that we" } ]

[ { "docid": "23267313", "title": "", "text": "testified that AT & T continued advertising with Radyo Pinoy, a matter which was not contested. Plaintiffs established that Radyo Pinoy’s signal could be picked up in Jersey City. Celle testified that the station had never received complaints from listeners claiming they could not receive the signal in Jersey City. A resident of Jersey City testified on behalf of the plaintiffs that he could receive Radyo Pinoy’s signal in Jersey City. 3. Actual Malice Clear and convincing evidence supports the jury finding that Pelayo entertained serious doubt as to the truth of the allegation that AT & T “was withdrawing its sponsorship of Radyo Pinoy” in part because it was being “shortchanged of its allotted time slot.” Defendants’ sole source for the story was an official at AT & T who appears not to have been involved with the account at the time the article was written and who had in fact moved to California. The official’s lack of current knowledge suggested a reasonable basis for defendants to question the accuracy and reliability of the information he provided. Nonetheless, Pe-layo did not investigate the accuracy of the story. Considering the evidence of ill will Pelayo felt towards Celle, a reasonable juror could conclude that Pelayo knowingly and recklessly ignored the probable falsity of the story and printed it. See St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (“[Recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.”); Perk v. Reader’s Digest Ass’n, Inc., 931 F.2d 408, 411 (6th Cir.1991) (in analyzing whether failure to investigate provides circumstantial evidence of recklessness to satisfy the actual malice standard, “this Court must look at each source to determine whether it was reliable and whether it indicated that more research was required to determine what the truth was”); Babb v. Minder, 806 F.2d 749, 755 (7th Cir.1986) (“[R]eekless conduct may be evidenced in part by failure to investigate thoroughly and verify the facts ... particularly where the material is peculiarly harmful or damaging to the" } ]

[ { "docid": "21919455", "title": "", "text": "National Lawyers’ Guild could be verified in those documents. Otherwise, Stanley testified, he relied on Stang. Thus, government documents were primarily relied upon, not reported on, for this article. Second, any application of the privilege should have been limited to those statements about Gertz that were actually checked against these documents. Instead, the trial court applied the privilege to the entire article. This might have been appropriate had the focus of the article, or even a substantial section of the article, been upon the congressional committee proceedings which were the basis of the public reports. Application of the privilege to the entire article was not appropriate here, however, where the reports were used only to verify certain statements. Thus, only those statements which were fair and accurate republications of statements made in the government documents were covered by the privilege. These statements had to be published with actual malice in order to be the basis of liability. The remaining defamatory statements in the article, however, could be the basis of liability if they were published as a result of negligence. The jury below, however, was required to find that negligence and actual malice were proved in order to find liability. This higher burden of proof than was actually required in no way undermines the jury’s verdict. If the standard of actual malice was satisfied, then by definition an intentional breach of duty occurred, thus more than satisfying the negligence standard where that was applicable. B The New York Times actual malice standard is deceptively simple; knowing falsity or reckless disregard of the truth or falsity of the defamatory statement. New York Times Co. v. Sullivan, 376 U.S. 254, 280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964). See also Garrison v. Louisiana, 379 U.S. 64, 79, 85 S.Ct. 209, 218,13 L.Ed.2d 125 (1964). Recklessness means that the publisher “in fact entertained serious doubts as to the truth of his publication,” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), or had a “subjective awareness of probable falsity.” Gertz v. Robert Welch, Inc., 418" }, { "docid": "4608974", "title": "", "text": "390 U.S. at 732, 88 S.Ct. 1323. The critical point of the actual malice inquiry under the First Amendment focuses on the defendant’s attitude toward the truth of the information itself, unlike the common law malice inquiry which measures the defendant’s attitude toward the plaintiff as an individual. See Sprague v. Am. Bar Ass’n, 276 F.Supp.2d 365, 377 n. 17 (E.D.Pa.2003) (explaining the distinction between actual malice and common law malice “is the object of defendants’ recklessness; a defendant who acts with common law malice acts with recklessness toward the plaintiff himself, whereas one acting with actual malice acts with recklessness toward the truth of the publication”) (internal citations omitted). The exact contours of the concept of actual malice have never been drawn with precision. However, certain boundaries are fixed. See Schiavone, 847 F.2d at 1090. Actual malice cannot be imputed merely based on an erroneous interpretation of the facts underlying the defamatory statement. See Time v. Pape, 401 U.S. 279, 290, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971) (“Time’s omission of the word ‘alleged’ amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of ‘malice’ under New York Times”). A finding of actual malice is appropriate, however, where the defendant had “obvious reasons to doubt the veracity of the informant or the accuracy of his reports,” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 (footnote omitted); such as where the defendant is aware of internal inconsistencies or has access to apparently reliable information that contradicts the defamatory assertions. Schiavone Const., 847 F.2d at 1090 (internal citations omitted). Furthermore, a party seeking to demonstrate actual malice need not rely solely on an admission from the mouth of the publisher. See Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (noting that a plaintiff may “rarely be successful in proving awareness of falsehood from the mouth of the defendant himself’). Rather, a plaintiff may" }, { "docid": "14315936", "title": "", "text": "determined that plaintiffs are limited public figures, the next question is whether plaintiffs are incapable of proving actual malice — by clear and convincing evidence — as a matter of law. “The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C.Cir.1996). Plaintiffs must show that “the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Purposeful avoidance of truth can constitute actual malice, see Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657, 692, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), but failure to investigate cannot, see St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. To make matters even more difficult for plaintiffs, the “clear and convincing evidence” requirement is “significantly more onerous than the usual preponderance of the evidence standard.” Tavoulareas, 817 F.2d at 776. Unsurprisingly, “[f|ew public figures have been able clearly and convincingly to prove that the scurrilous things said about them were published by someone with ‘serious doubts as to the truth of [the] publication.’ ” McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C.Cir.1996) (quoting St. Amant, 390 U.S. at 731, 88 S.Ct. 1323). Whether a defendant published a statement with actual malice is normally a question of fact for the jury. Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C.Cir.1988). A defendant cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. But if the plaintiff has not made a showing that a defendant could have published a defamatory statement with actual malice, then the defendant may prevail as a matter of law. Rees, 852 F.2d at 598. Defendant argues that he could not have made the challenged statements with actual malice because of the so-called “wire services defense.” Although this circuit has not squarely recognized this defense, defendant urges the Court to adopt it here and to find that he faithfully quoted or republished articles in" }, { "docid": "8493711", "title": "", "text": "prevail on a defendant’s motion to dismiss and then to engage in further discovery on the issue.”). “Although actual malice is subjective, a court typically will infer actual malice from objective facts,” understanding that a defendant in a defamation action will rarely admit that he published the relevant statements with actual malice. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir.2000) (quotation marks omitted). And of course whether actual malice can plausibly be inferred will depend on the facts and circumstances of each ease. For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy of his reports” or despite the “inherently improbable” nature of the statements themselves. Id. In practice, requiring that actual malice be plausibly alleged has not doomed defamation cases against public figures. To the contrary, district courts in and out of our Circuit have inferred actual malice at the pleading stage from allegations that referred to the nature and circumstances of the alleged defamation or previous dealings with the defendant. See, e.g., Tiversa Holding Corp. v. LabMD, Inc., Civ. A. No. 13-1296, 2014 WL 1584211, at *7 (W.D.Pa. Apr. 21, 2014); Lynch v. Ackley, Civ. No. 3:12CV537 (JBA), 2012 WL 6553649, at *9 (D.Conn. Dec. 14, 2012); Ciemniecki v. Parker McCay P.A., Civ. No. 09-6450 (RBK/KMW), 2010 WL 2326209, at *14 (D.N.J. June 7, 2010). Relying on Boyd v. Nationwide Mutual Insurance Company, which was decided prior to Iqbal and Twombly, Biro also argues that he was entitled to proceed to discovery because he alleged “facts suggestive enough to warrant discovery, even where those facts alone would not establish a cause of action for defamation.” 208" }, { "docid": "18499857", "title": "", "text": "establish that the defendants acted with reckless disregard for the truth. He notes that Fox rushed to broadcast the two-week-old sto ry even though it was not breaking news. See Curtis Pub. Co. v. Butts, 388 U.S. 130, 157, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Hunt, 720 F.2d at 643. It is true that a more deliberate consideration of the Plag-man article should have caused reasonable skepticism about the source and that the defendants were careless in relying on it, but this is an indication of negligence, not actual malice, and Superintendent Levesque faces the heavy burden of providing evidence that the defendants recognized the carelessness with which they were proceeding. See St. Amant, 390 U.S. at 731, 88 S.Ct. 1323 (“[RJeckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing”). In preparing for the cablecast, the defendants authenticated the April 11 incident and various facts reported in the Plagman article through reputable sources. Compare Tavoulareas v. Piro, 817 F.2d 762, 790 (D.C.Cir.1987) (finding no actual malice and agreeing with the district court’s assertion that “much of [the unreliable source’s] information was independently verified by other sources whose credibility even the plaintiff does not now challenge”) with Celle v. Filipino Rep. Enter. Inc., 209 F.3d 163, 190 (2d Cir.2000) (finding actual malice where the defendants relied on a single person who had a known bias against the plaintiff and whose account had internal inconsistencies). In the present case, the two actionable statements attributed to Levesque were certainly absurd, but the Plagman article presented them within larger, accurate comments that could be corroborated with the Washuk article. See Ryan v. Brooks, 634 F.2d 726, 734 (4th Cir.1980) (“As long as the sources of the libelous information appeared reliable, and the defendant had no doubts about its accuracy, the courts have held the evidence of malice insufficient to support a jury verdict, even if a more thorough investigation might have prevented the admitted error.”) (emphasis added) (citations omitted). Further, it is true that the Lewiston incident was. not “hot news,” but" }, { "docid": "4608976", "title": "", "text": "rely on objective circumstantial evidence in order to “override defendants’ protestations of good faith and honest belief’ as to the truth of the statements. Schiavone Const., 847 F.2d at 1090 (citing St. Amant, 390 U.S. at 732, 88 S.Ct. 1323). At the outset, the Court concludes that Winfrey’s denials of “actual malice” in making the allegedly defamatory statements are not controlling. As explained above, the question of actual malice is a subjective inquiry as to the defendant’s belief to be made by the finder of fact. As the Supreme Court has noted, a defendant cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. Actual malice exists where a statement was made with either: (1) knowledge of its falsity; or (2) reckless disregard to its truth or falsity. See New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. In order to show reckless disregard for the truth or falsity of a statement, the plaintiff must put forth sufficient evidence to support the conclusion that the defendant “entertained serious doubts as to the truth of his publication,” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323; or “subjective awareness of probable falsity.” McDowell, 769 F.2d at 951 (quoting Gertz, 418 U.S. at 335 n. 6, 94 S.Ct. 2997). Plaintiff has not argued, and therefore the Court need not address, that actual malice can be demonstrated by Winfrey’s having knowledge of the falsity of the allegedly defamatory comments made at the October Meeting and November Press Conference. Instead, the Court will focus on whether Plaintiff has presented clear and convincing evidence demonstrating Winfrey’s reckless disregard as to the truth of the allegedly defamatory statements. There are at least two methods available to aid Plaintiff in showing reckless disregard for purposes of actual malice. Under the first approach, a plaintiff presents evidence that the defendant knows or has information which casts doubt as to the truth of the allegedly defamatory communication. The second approach through which a plaintiff can establish reckless disregard is by" }, { "docid": "18222319", "title": "", "text": "also Celle, 209 F.3d at 181 (“A public figure seeking recovery in a libel action against a media defendant must establish the falsity of the defamatory statements.”). As to actual malice: Despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication. If it cannot be shown that the defendant knew that the statements were false, a plaintiff must demonstrate that the defendant made the statements with reckless disregard of whether they were true or false. The reckless conduct needed to show actual malice is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing, but by whether there is sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Church of Scientology, 238 F.3d at 174; see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (“Actual malice ... should not be confused with the concept of malice as an evil intent or a motive arising from spite or ill will.”); Sack, supra, § 5.5.1.1, at 5-68 (actual malice “relates to whether the defendant published without believing the truth of the publication”). The actual malice showing “must be made with ‘convincing clarity,’ or, in a later formulation, by ‘clear and convincing proof.’ ” Phila. Newspapers v. Hepps, 475 U.S. 767, 773, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (internal citations omitted). The Supreme Court has identified several factors as relevant to a finding of actual malice: (1) whether a story is fabricated or is based wholly on an unverified, anonymous source, (2) whether the defen dant’s allegations are so inherently improbable that only a reckless person would have put them in circulation, or (3) whether there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Church of Scientology, 238 F.3d at 174 (citing St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20" }, { "docid": "694001", "title": "", "text": "that secret portions of the Report must contain the Commission’s case against Sharon, and that the Bikfaya meeting is discussed in Appendix B. He also claims, however, that Time’s story might be read as indicating a red, not a green, light for revenge. The inconsistency among these statements could lead a jury to find that Kelly based his file on nothing more than speculation. If the jury finds that the allegation was “fabricated” or “the product of [Kelly’s] imagination,” it could permissibly infer actual malice. St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. No one at Time has ever seen Appendix B, so its writers could not have known that what Time said about the appendix was false. See St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325. But “a publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements.” Gertz, 680 F.2d at 538. The record arguably contains such clear indications. Defendant’s memoranda are replete with references to how Time’s employees “read, reread and relied upon the Kahan Commission Report,” Defendant’s Reply Memorandum on Actual Malice at 9, and were “specifically aware” of what the Report said about Appendix B, id. at 22. The Report mentioned the Bikfaya meeting in only one sentence, however, and provided no further mention of the meeting by way of citation to Appendix B, or to exhibits submitted to the Commission, or to testimony in either public or secret session. This silence about the meeting provided an obvious reason to question, if not in fact to doubt, the accuracy of Halevy’s information. St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. Time’s failure to deal with this problem could lead a jury to question, if not in fact to doubt, the good-faith implementation of its verification processes. In sum, the record contains sufficient admissible evidence of actual malice to preclude summary judgment. While Time may be able to satisfy the jury that it believed what it stated was true, it is the jury to whom" }, { "docid": "14315937", "title": "", "text": "with ‘serious doubts as to the truth of [the] publication.’ ” McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C.Cir.1996) (quoting St. Amant, 390 U.S. at 731, 88 S.Ct. 1323). Whether a defendant published a statement with actual malice is normally a question of fact for the jury. Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C.Cir.1988). A defendant cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. But if the plaintiff has not made a showing that a defendant could have published a defamatory statement with actual malice, then the defendant may prevail as a matter of law. Rees, 852 F.2d at 598. Defendant argues that he could not have made the challenged statements with actual malice because of the so-called “wire services defense.” Although this circuit has not squarely recognized this defense, defendant urges the Court to adopt it here and to find that he faithfully quoted or republished articles in authoring the allegedly defamatory statements. Def. Mem. at 19-27. Under defendant’s proposed defense, if “an allegedly defamatory statement was taken without substantial change from a reputable news-gathering agency,” then the defendant cannot be held liable for defamation unless he “actually knew that the wire service report was false or there is something unusual in the wire service report that should have put the publisher on notice that the report was probably false.” Id. at 24. Even if the Court were to recognize defendant’s proposed “wire services defense,” two problems would defeat its application here. As a legal matter, the second prong of defendant’s test begs the question of whether he acted with actual malice. If defendant did have actual knowledge of falsity, then his proposed wire services defense fails and he has acted with actual malice. That is because the second prong of defendant’s proposed test is basically the same as the test for actual malice. Compare Def. Mem. at 24 (defendant not liable unless he “actually knew that the wire service report was false" }, { "docid": "4226369", "title": "", "text": "private figure, requires more than proof of false statements. To some extent, defendant relied on the official reports and news accounts of the various construction projects. While it arguably may have been negligent not to have checked independently the veracity of this information, any fault does not rise to the level of actual malice. See St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325; New York Times, 376 U.S. at 288, 84 S.Ct. at 730; Dickey v. CBS, 583 F.2d 1221 (3d Cir.1978). Plaintiff’s only other evidence of actual malice is that several people apparently warned the defendant to check his facts before making his broadcasts. Again, Paiewonsky’s failure to verify his facts may have been negligent, but does not rise to the level of actual malice. Furthermore, contrary to plaintiff's assertion, the alleged misstatements regarding McDowell are not so “inherently improbable” that defendant should have been put on notice as to their possible falsity. See St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. V. Based on our independent review of the record, we conclude that plaintiff has failed to prove that defendant’s alleged defam atory remarks were made with actual malice. The judgment of the district court will be reversed and judgment for the defendant will be entered. . V.I. Code Ann. tit. 1, § 4 (1967) states: The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary. Accordingly, defendant’s argument that the Virgin Islands civil defamation law is guided by that of New York is incorrect. The source of this misimpression comes from Skeoch v. Ottley, 377 F.2d 804, 810 (3d Cir.1967). After noting that the Virgin Islands has adopted the restatements, the Court in Skeoch, in an offhand manner and as additional support for the Restatement of Torts’ substantive position" }, { "docid": "15598508", "title": "", "text": "St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, the Supreme Court reversed a jury finding of liability in a public official’s defamation action. Because of St. Am-ant ’s importance in actual malice analysis, we pause to recall the facts of that case. Briefly stated, Deputy Sheriff Thompson sued St. Amant, a candidate for public office, for repeating in the course of a televised speech the false allegation that Sheriff Thompson had taken bribes from a local Teamsters Union president. The record showed that St. Amant had based his allegation exclusively on information provided by an active member of a dissident faction within the Teamsters. At the time, the dissident faction was locked in a struggle for control against the faction led by the Teamsters’ official alleged to have paid bribes to the Sheriff. Although he had no knowledge of the source’s reputation for veracity, St. Amant failed to investígate independently the obviously serious charge of bribery and failed to seek confirmation of the information from others who might have known the facts. Notwithstanding this evidence, the Supreme Court found the record insufficient to support a finding of actual malice. Before evaluating the specific record before it, the St. Amant Court provided examples of the kind of proof that would likely support a finding of actual malice. The examples fell into three general categories: evidence establishing that the story was (1) “fabricated”; (2) “so inherently improbable that only a reckless man would have put [it] in circulation”; or (3) “based wholly on an unverified anonymous telephone call” or some other source that the defendant had “obvious reasons to . doubt.” 390 U.S. at 732, 88 S.Ct. at 1326. After setting forth these illustrative examples, the Court held that the evidence before it, by comparison, was clearly inadequate. St. Amant’s failure to investigate was deemed not indicative of actual malice, inasmuch as the plaintiff had not proven “a low community assessment of [the source’s] trustworthiness or unsatisfactory experience with him by St. Amant.” Id. at 733, 88 S.Ct. at 1326. The Court also found support for its decision in evidence" }, { "docid": "4226368", "title": "", "text": "the defamatory remarks with “knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 280, 84 S.Ct. at 726. The Supreme Court subsequently explained that reckless disregard for the truth means that the defendant “in fact entertained serious doubts as to the truth” of the statement, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968), or that the defendant had a “subjective awareness of probable falsity.” Gertz, 418 U.S. at 335 n. 6, 94 S.Ct. at 3004 n. 6. In the present case, plaintiff has not met this high standard of proof; there simply is no evidence that Paiewonsky entertained serious doubts about the truth of his remarks. McDowell points to numerous supposed errors contained in the broadcast as proof that plaintiff acted with actual malice. But such a res ipsa loquitur argument has little relevance to the actual malice calculus. Although some misstatements may well have been made, the First Amendment, even for a private figure, requires more than proof of false statements. To some extent, defendant relied on the official reports and news accounts of the various construction projects. While it arguably may have been negligent not to have checked independently the veracity of this information, any fault does not rise to the level of actual malice. See St. Amant, 390 U.S. at 731, 88 S.Ct. at 1325; New York Times, 376 U.S. at 288, 84 S.Ct. at 730; Dickey v. CBS, 583 F.2d 1221 (3d Cir.1978). Plaintiff’s only other evidence of actual malice is that several people apparently warned the defendant to check his facts before making his broadcasts. Again, Paiewonsky’s failure to verify his facts may have been negligent, but does not rise to the level of actual malice. Furthermore, contrary to plaintiff's assertion, the alleged misstatements regarding McDowell are not so “inherently improbable” that defendant should have been put on notice as to their possible falsity. See St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. V. Based on our independent review of the" }, { "docid": "8493710", "title": "", "text": "purposes, ... to be treated no differently from other actions,” Yiamouyiannis v. Consumers Union, 619 F.2d 932, 940 (2d Cir.1980), and Biro fails to offer a persuasive reason why the pleading standard should differ in defamation cases generally or in the malice inquiry specifically. Biro relies on our pre-Iqbal decision in Church of Scientology International v. Behar, in which we explained that “resolution of the ... actual malice inquiry] typically requires discovery,” 238 F.3d 168, 173 (2d Cir.2001), to argue that it is “impossible” without discovery for a plaintiff to plead facts demonstrating that the claim of actual malice is plausible. We disagree. The hurdles to plausibly pleading actual malice, though significant given the First Amendment interests at stake, are by no means insurmountable. See 2 Robert D. Sack, Sack on Defamation § 16:2.2 at 16.7-8 (4th ed. 2010) (“It can hardly be ruled out ... that plaintiffs’ counsel will develop extrajudicial means of obtaining sufficient facts to plead ‘actual malice’ with the degree of specificity required by Iqbal and Twombly, enabling the plaintiff to prevail on a defendant’s motion to dismiss and then to engage in further discovery on the issue.”). “Although actual malice is subjective, a court typically will infer actual malice from objective facts,” understanding that a defendant in a defamation action will rarely admit that he published the relevant statements with actual malice. Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 183 (2d Cir.2000) (quotation marks omitted). And of course whether actual malice can plausibly be inferred will depend on the facts and circumstances of each ease. For example, a plaintiff may allege that “a story [was] fabricated by the defendant” if the defendant provides no source for the allegedly defamatory statements or if the purported source denies giving the information. St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Or the plaintiff may point to the fact that the allegedly defamatory statements were “based wholly on an unverified anonymous telephone call” or were published despite “obvious [specified] reasons to doubt the veracity of the informant or the accuracy" }, { "docid": "2921950", "title": "", "text": "that plaintiff was a call girl. This is proof of convincing clarity to support the jury’s verdict that'the article was published not in good faith, but with actual malice. Id. 45 Cal.App.3d at 943-44,120 Cal.Rptr. at 189. Under the Montandon decision, an inference of actual malice can be drawn when a defendant publishes a defamatory statement that contradicts information known to him, even when the defendant testifies that he believed that the statement was not defamatory and was consistent with the facts within his knowledge. With these principles in mind, we conclude that Hunt met his burden of proving with convincing clarity that Liberty Lobby published the article with actual malice. The jury found that the article was both libelous and false and Liberty Lobby does not challenge that determination. Thus, assuming the falsity of the article, we turn to the evidence before the jury that the appellant knew it was false or entertained serious doubts about its truth. First, there is evidence that Liberty Lobby had reason to, and in fact did, question Marchetti’s neutrality in reporting on CIA matters. The article disclosed a CIA scheme to mislead Congress and the American public apparently to cover up the role that it purportedly played in the assassination of President Kennedy. Needless to say, it displayed a highly inflammatory opinion of the agency. Carto testified that he knew Marchetti had been involved in litigation with the CIA and that fact “absolutely” caused him to question what Marchetti wrote about the CIA. This evidence provides a clear and compelling inference that Liberty Lobby had “obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 268. See also, Gertz, 680 F.2d at 538. Although Carto said he did question Marchetti “on the manuscript,” the only reference thereto was the notation “Confirm this!” That remark apparently referred to Hunt’s lawsuit against the authors of “Coup d’etat in America” concerning his “alibi.” Thus, the jury could reasonably conclude that Carto did not follow up on his doubts" }, { "docid": "8493714", "title": "", "text": "inference of actual malice, id. at 732, 88 S.Ct. 1323. Here, though, none of the four sections of the Article containing the allegedly defamatory statements were based “wholly” on information from unverified and anonymous sources. Id.; Church of Scientology Int’l, 238 F.3d at 174. Nor does Biro’s complaint allege facts that would have prompted the New Yorker defendants to question the reliability of any of the named or unnamed sources at the time the Article was published. For example, the allegations casting doubt on the reliability of Franks and Marion Hendler as sources relate only to events that occurred after publication of the Article and therefore “cannot be relevant to the publisher’s state of mind [regarding] his alleged malice at the time of publication.” Herbert v. Lando, 781 F.2d 298, 306 (2d Cir.1986). The failure of the New Yorker defendants to correct a statement unrelated to the allegedly defamatory statements in light of events that occurred after publication is similarly insufficient to render the allegation of actual malice plausible. In addition, Grann’s decision to focus on Biro’s controversial authentications, while ignoring both his other authentications and his satisfied clients, does not plausibly suggest that Grann “entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323; see also Church of Scientology Int’l, 238 F.3d at 174 (“Despite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication.”). Second, we conclude that nearly all of Biro’s allegations against the republisher defendants LBM, Johnson, and YUP are conelusory. We agree with the District Court that any remaining nonconclusory allegations against these defendants are inadequate to state a plausible claim for relief. In summary, Biro does not plausibly allege that the defendants acted with actual malice. CONCLUSION For the foregoing reasons and those set forth in the accompanying summary order, we AFFIRM the judgment of the District Court. .In urging reversal, Biro argues that he does-not have to allege actual malice because he is not" }, { "docid": "2156739", "title": "", "text": "Cooper testified that she made a conscious decision not to inquire into the truth or falsity of Hanna’s allegations in the letter. Even if Cooper made such a decision, that decision does not prove actual malice under these circumstances. In St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), a lower court listed as part of its rationale for finding actual malice that a political candidate had no personal knowledge of the activities of the public official he allegedly defamed during a television broadcast. Id. at 730, 88 S.Ct. at 1325. Instead, the candidate relied solely on the affidavit of a union member whose reputation for veracity the candidate did not know. In addition, he failed to verify the information with those in the union office who might have known the facts. Id. The Supreme Court held that this evidence, evidence remarkably similar to that relied on by the trial court in the present case, did not prove reckless disregard. Id. The Court noted that no evidence existed indicating that the candidate was aware of the probable falsity of the union member’s statements or had reason to doubt his source’s veracity. “Failure to investigate,” the Court emphasized, “does not in itself establish bad faith.” Id. at 733, 88 S.Ct. at 1326. Here, the News and its editor had no apparent reason to question the truthfulness of the Hanna letter. A presumably reliable author, the director of a federally-sponsored cancer research center, wrote the letter on official FCRC letterhead. The author characterized the allegations against Reuber as ones which “I have investigated and have found to be true.” Furthermore, the source that gave Cooper the Hanna letter had provided her with reliable information previously. “Certainly where there was no reason to doubt the accuracy of the sources used, the failure to investigate further, even if time was available, cannot amount to reckless conduct.” Ryan v. Brooks, 634 F.2d at 733. The trial judge also relied on Cooper's testimony that she would have published the Hanna letter even if she had known some of the allegations were" }, { "docid": "13665614", "title": "", "text": "necessary to prove actual malice cannot be prescribed by one all-encompassing test. Case-by-case adjudication is the preferred method for determining whether a given factual situation comes within the ambit of actual malice. St. Amant v. Thompson, 390 U.S. 727, 730-31, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Although actual malice is a very difficult standard for any plaintiff to meet, simple reliance upon someone else’s statement does not absolve an author or publisher of liability. “[RJecklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.” Id. at 732, 88 S.Ct. at 1326. As the Seventh Circuit recently held upon reconsidering Gertz, “a publisher cannot feign ignorance or profess good faith when there are clear indications present which bring into question the truth or falsity of defamatory statements.” Gertz v. Robert Welch, Inc., 680 F.2d 527, 538 (7th Cir. 1982). Writing for this circuit, Judge Phillips recently stated: “As long as the sources of the libelous information appeared reliable, and the defendant had no doubts about its accuracy, the courts have held the evidence of malice insufficient to support a jury verdict, even if a more thorough investigation might have prevented the admitted error.” Ryan v. Brooks, 634 F.2d 726, 734 (4th Cir. 1980). Conscious of our duty to afford the plaintiff the benefit of all inferences that may be drawn on this summary judgment motion, there is evidence in the record that raises a substantial question of material fact as to whether the defendants had obvious reasons to doubt the veracity of the informant on whom they relied for the allegedly libelous part of the article. Nor have the defendants adequately rebutted the plaintiff’s claim that a more careful investigation of the matter should have been made before publication. It is possible, therefore, that the plaintiff can meet his burden of proving that the defendants had actual doubts about the accuracy of the information they published and that their failure to make an adequate investigation will reveal a reckless disregard for the truth. The sole source of" }, { "docid": "4608975", "title": "", "text": "amounted to the adoption of one of a number of possible rational interpretations of a document that bristled with ambiguities. The deliberate choice of such an interpretation, though arguably reflecting a misconception, was not enough to create a jury issue of ‘malice’ under New York Times”). A finding of actual malice is appropriate, however, where the defendant had “obvious reasons to doubt the veracity of the informant or the accuracy of his reports,” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323 (footnote omitted); such as where the defendant is aware of internal inconsistencies or has access to apparently reliable information that contradicts the defamatory assertions. Schiavone Const., 847 F.2d at 1090 (internal citations omitted). Furthermore, a party seeking to demonstrate actual malice need not rely solely on an admission from the mouth of the publisher. See Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) (noting that a plaintiff may “rarely be successful in proving awareness of falsehood from the mouth of the defendant himself’). Rather, a plaintiff may rely on objective circumstantial evidence in order to “override defendants’ protestations of good faith and honest belief’ as to the truth of the statements. Schiavone Const., 847 F.2d at 1090 (citing St. Amant, 390 U.S. at 732, 88 S.Ct. 1323). At the outset, the Court concludes that Winfrey’s denials of “actual malice” in making the allegedly defamatory statements are not controlling. As explained above, the question of actual malice is a subjective inquiry as to the defendant’s belief to be made by the finder of fact. As the Supreme Court has noted, a defendant cannot “automatically insure a favorable verdict by testifying that he published with a belief that the statements were true.” St. Amant, 390 U.S. at 732, 88 S.Ct. 1323. Actual malice exists where a statement was made with either: (1) knowledge of its falsity; or (2) reckless disregard to its truth or falsity. See New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. In order to show reckless disregard for the truth or falsity of a statement, the plaintiff must put" }, { "docid": "14315938", "title": "", "text": "authoring the allegedly defamatory statements. Def. Mem. at 19-27. Under defendant’s proposed defense, if “an allegedly defamatory statement was taken without substantial change from a reputable news-gathering agency,” then the defendant cannot be held liable for defamation unless he “actually knew that the wire service report was false or there is something unusual in the wire service report that should have put the publisher on notice that the report was probably false.” Id. at 24. Even if the Court were to recognize defendant’s proposed “wire services defense,” two problems would defeat its application here. As a legal matter, the second prong of defendant’s test begs the question of whether he acted with actual malice. If defendant did have actual knowledge of falsity, then his proposed wire services defense fails and he has acted with actual malice. That is because the second prong of defendant’s proposed test is basically the same as the test for actual malice. Compare Def. Mem. at 24 (defendant not liable unless he “actually knew that the wire service report was false or there is something unusual in the wire service report that should have put the publisher on notice that the report was probably false”), with Sheridan Square Press, 91 F.3d at 1508 (“A publisher acts with ‘actual malice’ if it either knows that what it is about to publish is false or it publishes the information with ‘reckless disregard’ for its truth or falsity.”). Defendant’s argument fails as a factual matter as well. Defendant points to ten sources he cited in one of his allegedly defamatory articles to demonstrate that the sources were quoted without substantial change. Def. Mem. at 25. But seven of those ten articles are in Arabic, provided without translation, and hence are unhelpful. Without knowing what they say, the Court cannot determine if “defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. None of the remaining three exhibits — the “frequently asked questions” website page from an organization that Dr. Parsi previously directed (Ex. 13), a paper co-authored" }, { "docid": "3895990", "title": "", "text": "of the information reported in the Daily Ledger. In her deposition, Dukette flatly denied speaking to the newspaper, and also claimed she could not recall speaking about Beauchamp’s case with Curtis Kin-man, who was quoted as the source of the article. She conceded, however, that she would have told Kinman about Beau-champ’s case if he asked her for the information, and Beauchamp asserts that the inferences that could be drawn from the concession suggest that Dukette may have spoken to Kinman. But even if it can be inferred that Dukette was the source, summary judgment still was appropriate because Beauchamp’s claim fails as a matter of law. In Indiana, a private individual bringing a defamation action in cases where the alleged defamatory statement is a matter of public or general concern, such as this one, see id. at 774-75, must prove “actual malice,” meaning that the statement was published with knowledge that it was false or made with a reckless disregard for the truth. Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 452 (Ind.1999) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). To prove that a statement was published with a reckless disregard for the truth, a defamation plaintiff must identify sufficient evidence permitting the conclusion that the defendant in fact entertained serious doubts as to the truth of the statement. Poyser v. Peerless, 775 N.E.2d 1101, 1107 (Ind.Ct.App.2002). “Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.” Journal-Gazette, 712 N.E.2d at 456 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968)). The article reported that Beau-champ had been arrested for rape and other crimes; that the arrest came after Beauchamp attacked a “Noblesville woman” in her home; and that the police believed that Beauchamp was involved in other crimes and “desperately” wanted information from the public. Although in hindsight some of these statements may or may not have been true, there is nothing here suggesting that when uttered Duk-ette entertained doubts" } ]

[ { "docid": "22656205", "title": "", "text": "Officer McFadden “seized” Terry and whether and when he conducted a “search.” There is some suggestion in the use of such terms as “stop” and “frisk” that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We emphatically reject this notion. It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime — “arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a “search.” Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a “petty indignity.” It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly. The danger in the logic which proceeds upon distinctions between a “stop” and an “arrest,” or “seizure” of the person, and between a “frisk” and a “search” is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact beween the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U. S. 346 (1957); Go-Bart Importing Co. v. United" } ]

[ { "docid": "14722433", "title": "", "text": "and is embodied in the principle that seizures are ‘reasonable’ only if supported by probable cause.” Dunaway v. New York, 442 U.S. 200, 213-14, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824 (1979). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court opened a narrow exception to the foregoing principles, permitting a brief “on-the-spot” investigative stop of a person by police where probable cause did not exist but the officers were possessed of sufficient specific articulable facts to justify a reasonable suspicion that the person stopped was engaged in unlawful activity. Sée in accord, Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The exception was made for the reason that upon balancing the public interest in protection from crime against the individual’s right to security of his person and effects free from arbitrary interference by law officers, it was decided that the intrusion was so “minimal” in contrast to traditional arrest and seizure that a limited leeway should be permitted in the interest of law enforcement. Dunaway v. New York, supra, 442 U.S. at 209-11, 99 S.Ct. at 2254-55. Indeed some members of the Court (Justices Stewart and Rehnquist) were of the view that such conduct did not amount to a “seizure” as that term is used in the Fourth Amendment, United States v. Mendenhall, 446 U.S. 544, 551-57,100 S.Ct. 1870, 1875-78, 64 L.Ed.2d 497 (1980). Thus the degree to which a person’s liberty may be curtailed when law enforcement agents have less than probable cause is determined by balancing the “public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S.Ct. at 2578. Terry upheld the brief" }, { "docid": "18711925", "title": "", "text": "Amendment Plaintiffs also claim that defendant Leonard violated the deceased Fernandez’s fourth amendment right to be free of un reasonable seizures. The Supreme Court in Tennessee v. Gamer, — U.S. —, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), held it to be a violation of the fourth amendment for a police officer to “seize an unarmed, non-dangerous suspect by shooting him dead.” Id. 105 S.Ct. at 1701. The question before us is whether this constitutional violation was clearly established in December 1976. We think that it was. In Gamer the Supreme Court stated: Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878 [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607] (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544 [100 S.Ct. 1870, 64 L.Ed.2d 497] (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. Id. at 1699 (emphasis added). All nine Justices agreed that a law enforcement officer “seizes” someone by shooting him. Id. at 1709 (O’Connor, J., dissenting). By 1976, as was reaffirmed and clarified in 1975 in United States v. Brignoni-Ponce, the clearly established law was that any unreasonable restraint on the freedom of an individual by a police officer was a fourth amendment violation. The Court in Brignoni-Ponce explained that the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. Id. 422 U.S. at 878, 95 S.Ct. at 2578. In the case before us plaintiffs adduced facts from which it could be found that Leonard used deadly force to seize Fernandez without any justification. This was in 1976 a patently unreasonable seizure that violated what was well established fourth amendment law at the time. There were cases decided before 1976 holding that the use of excessive force by police to detain a suspect violated" }, { "docid": "20007893", "title": "", "text": "make no effort to compare the treatment Bennett received at the hands of the defendants with the treatment of any person similarly situated to Bennett. Since the Estate has failed to meet this threshold requirement, summary judgment was properly granted on its equal protection claim. 3. Fourth Amendment The Estate challenges the district court’s grant of summary judgment on its multiple Fourth Amendment claims. It argues that both its members and Bennett had their Fourth Amendment rights violated by the defendants. In response, the defendants contend that no constitutional violation took place, and in the alternative, that they are entitled to qualified immunity. The Fourth Amendment prohibits unreasonable searches and seizures. See U.S. Const, amend. IV; United States v. López, 989 F.2d 24, 26 (1st Cir.1993). The Amendment applies equally to seizures of persons and to seizures of property. Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A “seizure” of property occurs when a state agent meaningfully interferes with a private citizen’s possessory interest in that property. Tower, 326 F.3d at 297 (citing United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). The seizure of a person occurs when, by means of physical force or a show of authority, an officer restrains the liberty of a person and such person submits to the restriction feeling that he or she is not free to leave. United States v. Holloway, 499 F.3d 114, 117 (1st Cir.2007) (quoting United States v. Sealey, 30 F.3d 7, 9 (1st Cir.1994)). A seizure, however, does not amount to a constitutional violation unless it is unreasonable. Reasonableness is a highly situational determination, Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996), which generally depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Qualified immunity is a doctrine that shields government officials" }, { "docid": "5725195", "title": "", "text": "the Government urges. An “automatic companion” rule is inconsistent with the Supreme Court’s observation that it “has been careful to maintain [the] narrow scope” of Terry’s exception to the warrant requirement. Dunaway v. New York, 442 U.S. 200, 210, 99 S.Ct. 2248, 2255, 60 L.Ed.2d 824 (1979). IV. Since we do not agree with the Government that the handgun was properly seized based only upon Bell’s presence in Cherry’s automobile at the time of Cherry’s arrest, we turn to consideration of whether the patdown conducted by Agent Snyder passes constitutional, muster under traditional Fourth Amendment analysis. The fundamental inquiry in determining whether evidence is admissible is whether, in light of the “totality of the circumstances” surrounding the seizure, it was reasonable for law enforcement personnel to proceed as they did. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). In applying this standard to the case at bar, certain additional principles are relevant. The first is that reasonableness of a given search or seizure depends upon “a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975); see also United States v. Hensley, 469 U.S.-, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The second is that the arresting officers in this case unquestionably had the authority to search the passenger compartment of the Cadillac incident to Cherry’s lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). As a corrollary to the princi pies set forth in Belton, Agent Snyder had the authority to require defendant to exit the automobile while the arrest of Cherry and the subsequent, legitimate search of the passenger compartment of the Cadillac occurred. Cf. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977). Third, while the fact of companionship did not of itself justify" }, { "docid": "22163804", "title": "", "text": "a Border Patrol officer on a roving patrol would be unconstitutional. In Unit ed States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Supreme Court discussed at length the Fourth Amendment limitations on the authority of the United States Border Patrol to stop (seize) automobiles near the Mexican border in order simply to question the occupants about their citizenship and immigration status. The Court’s analysis began with the recognition that \"The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest,” and that whenever a government officer seized a person the “Fourth Amendment requires that the seizure be ‘reasonable’”. Id. at 878, 95 S.Ct. at 2578. As with other categories of police action subject to Fourth Amendment constraints, “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id. The Supreme Court identified the public interest at stake in a seizure by a roving Border Patrol officer as the need to prevent the illegal entry of aliens at the Mexican border. The Court recognized that the common Mexican-American border was over 2000 miles long and that it would be impossible to effectively police this border. This impossibility has resulted in an influx of over one million illegal aliens a year which creates “significant economic and social problems.” Id. Against this valid public interest of attempting to regulate the flow of aliens, the Court then weighed the interference with individual liberty that results when an officer stops an automobile and questions its occupants. The Court concluded that such an intrusion is modest since it usually consumes no more than a minute, there is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside. Because of the limited nature of the intrusion, stops of this sort “may be justified on facts that do not amount to the probable cause required for" }, { "docid": "11508050", "title": "", "text": "that a crime had occurred. More particularly, we hold that (1) the initial approach on the sidewalk constituted a mere “contact,” and not a compelled investigative stop, and therefore did not require reasonable, articulable grounds for suspecting that appellant had committed a crime; (2) the necessary basis for an investigative stop existed at least from the time Wylie produced the withdrawal slip, and nothing else, in response to Officer Franck’s request for identification; and (3) the reentry into the bank for the purpose of further investigation was justified under the Terry stop doctrine, and did not amount to an arrest without probable cause. A It is well-settled that the Fourth Amendment applies to “seizures” of the person which fall short of traditional arrests, and that such restraints on personal freedom may be justified on a showing of less than probable cause if, and only if, the police conduct is “reasonable.” See, e. g., United States v. Brignoni-Ponce, 422 U.S. 873, 878-81, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, supra, 392 U.S. at 16-27, 88 S.Ct. 1868; United States v. Coates, 161 U.S.App.D.C. 334, 337, 495 F.2d 160, 163 (1974). “As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S.Ct. at 2578-79, citing, inter alia, Terry v. Ohio, supra, 392 U.S. at 20-21, 88 S.Ct. 1868. A general rule which has emerged from this balance is that “in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra at 21, 88 S.Ct. at 1880, see United States v. Brignoni-Ponce, supra, 422 U.S. at 881, 884, 95 S.Ct. 2574. But police-citizen communications which take place under circumstances in which the citizen’s “freedom to walk away” is not limited by anything other than his desire to" }, { "docid": "22659905", "title": "", "text": "arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883. A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U. S. 543, 558-562 (1976). The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have “probable cause” to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that" }, { "docid": "22658755", "title": "", "text": "Court, and he said, 'no, I want a jury.’ He said 'no, I don’t understand that.’ And I don’t blame him for not understanding that. That’s the first time I've ever seen such a thing brought on before this Court, and I’ve been here for quite a few years as an attorney, of course. “Now, no question but what the boy fully understood what was meant-by that. None at all in the Court’s mind. If you want to go ahead, you can do so.” Ibid. But see n. 1, supra. “The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends 'on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, [422 U. S. 873, 878 (1975)]. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U. S. 47, 50-51 (1979). The fruits of the search of petitioner’s person were, of course, not necessary to support probable cause to arrest petitioner. Me. Justice Blackmun, concurring. I join the Court’s opinion, but I write separately to explain my somewhat different approach to the issues addressed in Part II-A thereof. In my view, Rakas v. Illinois, 439 U. S. 128 (1978), recognized two analytically distinct but “invariably intertwined” issues of substantive Fourth Amendment jurisprudence. Id., at 139. The first is “whether [a] disputed search or seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect,” id., at 140; the second is whether “the challenged search or seizure violated [that] Fourth Amendment righ[t],” ibid. The first of these questions is answered by determining whether the defendant has a “legitimate expectation of privacy” that has been invaded" }, { "docid": "15751700", "title": "", "text": "a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877; United States v. Wright, 565 F.2d 486, 488 (8th Cir. 1977), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 67 (1978). A seizure may be accomplished either by physical restraint or by sufficient show of authority. Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The Terry seizure requirement is fulfilled when “it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way.” United States v. Pope, 561 F.2d 663, 668 (6th Cir. 1977). Officer Lottmann stopped his car, got out, then motioned and called for appellant and his companion Burks to walk across the street towards him. Burks did not walk towards the car in compliance with the command so Lottmann called a second time, which indicates that the pair were not free to continue down the street. Clearly Lottmann’s actions constituted a sufficient show of authority to restrain appellant’s freedom of movement, therefore appellant was seized. In determining whether this seizure has complied with the reasonableness requirement of the Fourth Amendment, we must balance the public interest against the appellant’s competing interest of being free from arbitrary interference by law officers. Brown v. Texas, supra, -U.S. at -, -, 99 S.Ct. 2637; United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). In this balancing process we follow the standards laid down by the Supreme Court in Brown v. Texas, supra, -U.S. at -, 99 S.Ct. at 2640: A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. * * * To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that" }, { "docid": "3330157", "title": "", "text": "to which the seizure advances the public interest, and the severity of the interference with individual liberty. United States v. Brignoni-Ponce, 422 U.S. 873, 878-83, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual. Brown v. Texas,U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). We are firmly convinced that the facts related above were sufficiently specific, objective, and articulable to satisfy any of the tests. We weigh the interest of the police in reacting to citizens’ legitimate concerns about a suspicious person in the neighborhood and in reacting to their own reasonable suspicions about potential criminal activity and find it an important governmental interest. That interest is furthered by the type of seizure anticipated here: A simple questioning and identification of Plaintiff would certainly advance the government’s interest by negating or confirming those suspicions in a short time. The interest to the public is not outweighed by the anticipated minimal intrusion into the Plaintiff’s privacy. Plaintiff’s first contention must therefore be rejected. The second alleged violation of Plaintiff’s constitutional rights is the assertion that Defendants acted with excessive, unreasonable force in their apprehension of Plaintiff. This allegation must also fall in light of the facts of the case. We agree with Judge Troutman’s opinion that a police officer may not use force which far exceeds that which is reasonable and necessary under the circumstances to make the arrest. Hausman v. Tredinnick, 432 F.Supp. 1160, 1162 (E.D.Pa.1977). Accord, Howell v. Cataldi, 464 F.2d 272, 282 (3d Cir. 1972). But we believe that Defendants’ use of force in the pursuit of Plaintiff was reasonable and necessary. Defendants’ use of force was confined to two instances of firing shots from a handgun at or near Plaintiff. The first time Defendants used the gun was in the field when Travelpiece shot at the left rear tire of the van. This shot was undertaken only after Plaintiff had placed both Defendants in fear of severe bodily harm or loss of" }, { "docid": "8098421", "title": "", "text": "S.Ct. at 1923. When the petitioner rolled down his window instead of stepping out of his car, the threat of the gun was even greater, and the policeman’s “limited intrusion designed to insure his safety ... was reasonable.” Id. at 148, 92 S.Ct. at 1924. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), involved a “pure” stop — that is, a seizure not involving a protective search like the one in Terry. In that case, federal Border Patrol officers stopped a car sixty-five miles from the Mexican border because the occupants of the car looked like Mexican nationals. The officers asked the occupants to indentify themselves and to justify their presence in this country. After discovering that some of the occupants were Mexican nationals not legally in this country, the officers arrested the occupants of the car. The Supreme Court struck down the driver’s conviction for violations of the Immigration and Nationality Act, holding that the officers did not have sufficient grounds to stop the car in the first place. The Court reaffirmed the principles set forth in Terry, stating that whenever “ ‘a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person’ ... and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” Id. at 878, 95 S.Ct. at 2578, quoting Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). The test of reasonableness depended on a balancing of the public interest and “the interference with individual liberty that results when an officer stops an automobile and questions its occupants.” Id. at 879, 95 S.Ct. at 2579. Although the Court found this intrusion to be “modest,” such a stop was permissible “only if [the officers] are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” Id. at 884, 95 S.Ct. at 2581 (footnote omitted). In short, such a stop — even absent the search for a weapon — can" }, { "docid": "21548792", "title": "", "text": "military judge held that the heroin was properly discovered and seized by the police during a search of the appellant pursuant and incident to his lawful arrest by the military policemen. The Court of Military Review has sustained that ruling. II We now consider the appellant’s contention that discovery of the evidence was made pursuant to his illegal arrest and that the evidence was thus inadmissible as fruit from the poisonous tree. The Fourth Amendment provides: “The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” It may not be gainsaid that in this case the Fourth Amendment became involved when United States Army military policemen informed the appellant that he was under arrest for illegal border crossing and ordered the appellant and his companion to remove their luggage from the automobile into the checkpoint station. For “stopping an automobile and detaining its occupants constitute a ‘seizure’ within the meaning [of the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). See also United States v. Martinez Fuerte, 428 U.S. 543, 556-58, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Moreover, as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), demonstrates, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877. Under familiar concepts, the Fourth Amendment requires that the seizure be reasonable. And “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S.Ct. at 2579. See also Terry v. Ohio, supra; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727," }, { "docid": "3330155", "title": "", "text": "(4) Conspiring to violate the above rights. The first of the alleged constitutional violations must be dismissed on an analysis of the applicable law to the findings of fact. Plaintiff alleges that Defendants’ attempts to arrest him on Hillside Drive without probable cause violated his rights under the Fourth Amendment to the Constitution. But we adopted Plaintiff’s suggested finding # 17 as our finding # 22: “Golla intended to stop Dolan’s van and ask for his identification and an explanation of his activities.” Clearly Defendants never intended to arrest the operator of the van. Defendants responded to the concerned telephone calls of residents of the Hillside Drive neighborhood. A strange van was parked in front of an unoccupied home. A strange man was seen carrying a sack over his shoulder. The residents’ primary concern was for their own well-being and that of their children. When the police investigated the van and saw equipment and materials in plain view that could be used in the theft of automobiles, they became suspicious. Their suspicions grew when they learned that the suspected operator of the van had been convicted of receiving stolen goods and was out of prison on parole. Because of their knowledge and because of the concerned requests of the local citizens, the police intended to question the operator of the van. This was not a random stop of a passerby. No search was anticipated. No arrest was anticipated. Anytime a police officer accosts an individual and restrains his freedom to walk away, however, he has “seized” that person and the Fourth Amendment requires that the seizure be reasonable. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of seizures that are less intrusive than a traditional arrest depends on a balance between the public interest and the individual’s right to personal freedom from arbitrary interference by law officers. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Consideration of the propriety of such seizures requires weighing the gravity of the public concern served by the seizure, the degree" }, { "docid": "22659904", "title": "", "text": "S. C. § 1257 (2). On appeal here we noted probable jurisdiction. 439 U. S. 909 (1978). We reverse. II When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). ‘[W] hen ever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ id., at 16, and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883. A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must" }, { "docid": "22448823", "title": "", "text": "a custodial arrest. E.g., United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir.1995) (en banc). We see no compelling reason to depart from this en banc court’s previous holding that even if “an officer’s initial traffic stop [is] objectively justified by the officer’s observation of a minor traffic violation, ... his investigation nevertheless will be circumscribed by Terry’s scope requirement.” Botero-Ospina, 71 F.3d at 788. Even if we were to abandon Terry for this type of traffic stop, we are convinced we would still apply a scope requirement since, as indicated by the Supreme Court, the Fourth Amendment constrains the scope of all searches and seizures. E.g., Royer, 460 U.S. at 499-500, 103 S.Ct. 1319. For these reasons, we conclude that the Fourth Amendment reasonableness of a traffic stop based on probable cause must be judged by examining both the length of the detention and the manner in which it is carried out. We therefore reject the government’s assertion that, because Officer Tucker’s questioning about weapons did not extend the length of the stop in this case, there was no Fourth Amendment violation. III. The second issue we must address is whether to adopt a bright-line rule allowing an officer conducting a traffic stop to ask the driver about the presence of weapons, absent reasonable suspicion that the driver may be armed and dangerous. For the reasons that follow, I believe we should reject the government’s invitation to adopt such a rule in this case. The “touchstone” of Fourth Amendment analysis “is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry, 392 U.S. at 19, 88 S.Ct. 1868). “Reasonableness, of course, depends ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Id. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Because of “the fact-specific nature of the reasonableness inquiry,” the Supreme Court has" }, { "docid": "23116259", "title": "", "text": "[behind the investigation] and the individual’s right to personal security free from arbitrary interference from law officers.” United States v. Brignoni — Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975). Where the public interest served by the officer’s investigation is great and the intrusion on individual privacy is small, investigative stops of limited duration and “reasonably related in scope to the justification for their initiation” have been upheld. United States v. Brignoni — Ponce, 422 U.S. at 881, 95 S.Ct. at 2580, citing Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868. A threshold question we must address is whether the facts before us define an investigative stop within the meaning of Terry. Agent Johnson had just approached Appellant and flashed his credentials when Appellant fled. Terry states that the Fourth Amendment becomes relevant to an encounter between police and citizen only upon a “seizure of the person”. 392 U.S. at 16, 88 S.Ct. at 1877. In Terry the Supreme Court held that a “seizure of the person” occurs “whenever a police officer accosts an individual and restrains his freedom to walk away.” Id. This does not require an actual physical seizure, so long as it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way. See, e. g., Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1962); Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. On the other hand, the Supreme Court noted in Terry that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons”. 392 U.S. at 19 n. 16, 88 S.Ct. at 1879. Whether Terry considerations come into play in evaluating the officer’s conduct depends on the totality of the circumstances surrounding the encounter. Here, Agent Johnson was obviously intending to make a Terry stop when he approached Appellant to “talk” with him. This intention was thwarted, however, by Appellant’s flight at the moment" }, { "docid": "21548793", "title": "", "text": "Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). See also United States v. Martinez Fuerte, 428 U.S. 543, 556-58, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). Moreover, as Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), demonstrates, “whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Id. at 16, 88 S.Ct. at 1877. Under familiar concepts, the Fourth Amendment requires that the seizure be reasonable. And “the reasonableness of such seizures depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” United States v. Brignoni-Ponce, supra, 422 U.S. at 878, 95 S.Ct. at 2579. See also Terry v. Ohio, supra; Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Thus, as the Supreme Court recently stated, “the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against ‘an objective standard,’ whether this be probable cause or a less stringent test.” Delaware v. Prouse, supra (footnotes omitted). And where the circumstances preclude the “insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” Id. at 1396-97 (footnote omitted). See Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); United States v. Martinez-Fuerte, supra; Camara v. Municipal Court, supra. Thus, in United States v. Martinez Fuerte, supra, the Court upheld a scheme by which the United States Border Patrol required automobiles traveling from Mexico into the United States to stop at a border checkpoint, even though no articulable facts gave rise to a suspicion that the vehicles contained illegal aliens or" }, { "docid": "21694810", "title": "", "text": "in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams moved to suppress as evidence the gun, arguing that he was illegally seized during the traffic stop when Officer Mausz ordered him back into Miller’s car. The district court denied his motion without a hearing. Williams then pled guilty, reserving his right to challenge the district court’s ruling. Fed.R.Crim.P. 11(a)(2). The district court sentenced Williams to 51 months imprisonment. We have jurisdiction under 28 U.S.C. § 1291, and affirm. II “The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) (internal quotation marks omitted); see also Wilson, 519 U.S. at 411, 117 S.Ct. 882. Whether a seizure is reasonable turns “ ‘on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ” Mimms, 434 U.S. at 109, 98 S.Ct. 330 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). The district court’s determination that a search was reason able under the Fourth Amendment is reviewed de novo. Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir.1994). In Wilson, the Supreme Court considered whether police officers can order a passenger out of a lawfully stopped vehicle under the Fourth Amendment, balancing the passenger’s liberty interest with the public interest in officer safety. 519 U.S. at 413-14, 117 S.Ct. 882. The Wilson Court recognized that the passenger’s liberty interests are stronger than the interests of the driver because, although there is probable cause to stop the driver based on the traffic infraction, “there is no such reason to stop or detain the passengers.” Id. at 413, 117 S.Ct. 882. However, the Court reasoned that the additional intrusion was minimal because: “as a practical matter, the passengers are already stopped by virtue of the stop of" }, { "docid": "6452497", "title": "", "text": "the Fourth Amendment, and we affirm the district court’s denial of Nichols’ motion to suppress. I. Background A. - The Fourth Amendment and Roving Border Patrol Stops The Supreme Court addressed the Border Patrol’s authority to stop automobiles near the Mexican border in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), finding that such authority exists only where Border Patrol agents “are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” Id. at 884, 95 S.Ct. at 2582. Specifically, Brignoni-Ponce required the Court to address whether roving Border Patrol agents may stop a vehicle near the Mexican border where the only ground for suspicion is that the vehicle’s occupants appear to be of Mexican ancestry. Id. at 876, 95 S.Ct. at 2577-78. The Court held that the mere appearance of Mexican ancestry did not alone amount to the reasonable suspicion necessary for a roving Border Patrol stop near the border. Id. at 886-87, 95 S.Ct. at 2582-83. The Court began by noting that the Fourth Amendment applies to all seizures of the person, including seizures involving only a brief detention short of traditional arrest. Id. at 878, 95 S.Ct. at 2578-79 (citing, e.g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Quoting from the semi* nal Terry decision, the Court explained that a police officer’s restraint of an individual’s freedom to walk away constitutes a seizure, for which the Fourth Amendment imposes a reasonableness requirement. Id. The reasonableness of such a seizure, as the Court pointed out, “depends on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Id. The Court then examined the interests at stake, finding that “[bjecause of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an arrest.” Id. at 880, 95 S.Ct. at 2580. In reaching this conclusion," }, { "docid": "3330156", "title": "", "text": "learned that the suspected operator of the van had been convicted of receiving stolen goods and was out of prison on parole. Because of their knowledge and because of the concerned requests of the local citizens, the police intended to question the operator of the van. This was not a random stop of a passerby. No search was anticipated. No arrest was anticipated. Anytime a police officer accosts an individual and restrains his freedom to walk away, however, he has “seized” that person and the Fourth Amendment requires that the seizure be reasonable. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of seizures that are less intrusive than a traditional arrest depends on a balance between the public interest and the individual’s right to personal freedom from arbitrary interference by law officers. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Consideration of the propriety of such seizures requires weighing the gravity of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. United States v. Brignoni-Ponce, 422 U.S. 873, 878-83, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual. Brown v. Texas,U.S. -, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). We are firmly convinced that the facts related above were sufficiently specific, objective, and articulable to satisfy any of the tests. We weigh the interest of the police in reacting to citizens’ legitimate concerns about a suspicious person in the neighborhood and in reacting to their own reasonable suspicions about potential criminal activity and find it an important governmental interest. That interest is furthered by the type of seizure anticipated here: A simple questioning and identification of Plaintiff would certainly advance the government’s interest by negating or confirming those suspicions in a short time. The interest to the public is not outweighed by the anticipated minimal" } ]

[ { "docid": "17866195", "title": "", "text": "him is similarly without merit. Quimby was required to file his income tax returns in Dallas which is located in the Northern District. The Northern District of Texas was the proper venue to institute the prosecution since the commission of a 26 U.S.C. § 7203 violation is considered to occur in the judicial district in which the taxpayer is required to file. United States v. Calhoun, 566 F.2d 969, 973 (5th Cir. 1978). Once venue was transferred to the Eastern District upon Quimby’s motion, the right to be tried in the district in which the crime was committed was waived. Nor does Quimby’s contention the trial judge should have been disqualified require reversal of his conviction. Quimby’s pleadings indicate the source of any bias or prejudice Judge Steger might have had against him was because of judicial actions rather than personal. In order “to be disqualifying, the alleged bias or prejudice must stem from an extrajudicial source.” United States v. Serrano, 607 F.2d 1145, 1150 (5th Cir. 1979). Quimby contends the evidence was not sufficient to show he was the person who committed the crimes charged in the information nor that he willfully failed to supply the necessary tax information. Both of these arguments lack merit. At trial, Quimby was identified unequivocally as an employee of Rusk State Hospital for the past seventeen years. No other Leo Quimby worked at the hospital. Identity of a criminal defendant may be proven by inference and circumstantial evidence. “The elements of an offense under Section 7203 involve proof of failure to file and willfulness in doing so.” United States v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). A defendant’s “good motive” is not relevant in determining whether his act was willful under § 7203. United States v. Douglas, 476 F.2d 260, 263 (5th Cir. 1973). Section 7203 “only requires that the act be purposefully done with an awareness of the action and not just negligently or inadvertently.” Id. Drawing all reasonable inferences in a light most favorable to support the" } ]

[ { "docid": "17224079", "title": "", "text": "§ 1030(a)(2)(C) do speak in terms of their effects. For example, § 1030(a)(5)(B) criminalizes intentionally accessing a computer without authorization and recklessly causing damage. Because that crime is defined in terms of its effects — the damage caused — venue could be proper wherever that occurred. Congress, however, did not define a violation of § 1030(a)(2)(C) in terms of its effects. The statute simply criminalizes accessing a computer without authorization and obtaining information. It punishes only the actions that the defendant takes to access and obtain. It does not speak in terms of the effects on those whose infor mation is obtained. The crime is complete even if the offender never looks at the information and immediately destroys it, or the victim has no idea that information was ever taken. B. The Government also argues that venue was proper in New Jersey because Auernheimer failed to obtain authorization from approximately 4,500 New Jersey residents to “use[ ] their ICC-ID numbers to access the AT & T servers.” Gov’t Br. 80. The Government argues that when a statute makes it a crime to fail to do some required act, venue can lie in the district in which the act should have been done. The Government concludes that venue is proper because Auernheimer and Spitler failed to obtain authorization from about 4,500 people in New Jersey prior to accessing AT & T’s servers. This rule only applies, however, when a preexisting legal duty requires the act that the defendant failed to do. See 1 Wayne R. LaFave, Substantive Criminal Law § 6.2(a) (2d ed.2003) (noting that crimes of omission are generally limited by specific duties such as relationship, statute, contract, assumption of care, creation of peril, controlling the conduct of others, and landowner); accord United States v. Sabhnani 599 F.3d 215, 237 (2d Cir.2010). Failure to perform a required act could confer venue where a defendant should have performed that act when a statute penalizes inaction, such as failure to report to a military draft board (see, e.g., Johnston v. United States, 351 U.S. 215, 219-20, 76 S.Ct. 739, 100 L.Ed. 1097" }, { "docid": "3806868", "title": "", "text": "cause of the accused is national” and demanding that “this accused [be allowed] full liberty of movement before trial.” The relevance of such a claim to a motion to dismiss the indictment was at best doubtful. The point in any event has been ruled on in United States v. Foster, 278 F.2d 567, 570 (2 Cir. 1960), cert. denied, 364 U.S. 834, 81 S.Ct. 48, 5 L.Ed.2d 60 (1960), where the Court held that “The propriety of imposing territorial limitations as a condition of granting release on bail cannot be doubted, nor can the court’s power in its discretion to expand the limits originally fixed.” (D) Venue As a further ground in support of his motion to dismiss the indictment, defendant urged that venue was improperly laid in the District of Connecticut, in violation of his rights under U.S.Const. art. Ill, § 2, cl. 3 and Amends. V (due process clause) and VI (venue clause). In the alternative, he moved for change of venue to the Eastern District of New York, insisting “that as a New York radical he be tried in New York.” The Court, in denying his motion to dismiss the indictment, rejected his claim of improper venue for the reasons stated at p. 877 supra. The location of the Local Board (Norwalk, Connecticut) having jurisdiction over defendant’s place of residence (New Canaan, Connecticut) at the time he originally registered has continuing jurisdiction over him. Selective Service Regulations, § 1613.12(a), 3 C.F.R. 1613.12(a). The Local Board with which he was registered and to which he failed to report for induction is the situs of the offense here charged. United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946). The fact he was living outside of the District of Connecticut at the time he failed to report for induction is irrelevant upon the issue of venue. Jones v. Pescor, 169 F.2d 853, 855 (8 Cir. 1948); cf. Johnston v. United States, 351 U.S. 215, 220-221, 76 S.Ct. 739, 100 L.Ed. 1097 (1956). (E) Automatic Hearing Before Local Board Finally, defendant claimed the indictment should have" }, { "docid": "19375105", "title": "", "text": "local draft boards to report for civilian work at state hospitals located in judicial districts other than those in which they resided and were registered. They refused to report for work at the designated places and were indicted for violation of the Universal Military Training and Service Act. Since the place fixed for performance determines the situs of the crime, the Court held that venue was proper only in the judicial districts where the civilian work was to be performed and not in the judicial districts in which they resided and were registered. Id. See also, Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) (venue for prosecution for false affidavits filed with the NLRB only proper in the District of Columbia where the affidavits had to be filed with the Board); Rumely v. McCarthy, 250 U.S. 283, 39 S.Ct. 483, 63 L.Ed. 983 (1919) (venue for prosecution for failure to report to the federal Alien Property Custodian lay only in the District of Columbia, where the Custodian was located); United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916) (venue for prosecution for failure to file statement with federal Commissioner General of Immigration only proper in District of Columbia where the Commissioner General is located); United States v. Calhoun, 566 F.2d 969, 973 (5th Cir.1978) (Crime of failure to file an income tax return committed in the judicial district in which the return was to be filed). There is no doubt in this case that the place fixed for performance of the legally required act was Washington, D.C. The statute itself designates Washington as the place for performance since Section 461(a) directs that the report be filed with the Secretary of Labor and he is located in the District of Columbia. The Labor Secretary’s published regulations further direct that any labor organization imposing a trusteeship over a local union must file the required reports “with the Director, Office of Labor-Management Standards Enforcement, Department of Labor, Washington, D.C. 20216.” 29 C.F.R. §§ 408.2-408.4 (1982). In addition the government’s print ed form" }, { "docid": "21059355", "title": "", "text": "In Johnston draft registrants classified as conscientious objectors refused to perform alternative service in hospitals located in judicial districts other than where they were registered. The registrants refused to report to designated hospitals and were prosecuted under the Selective Service Act. The Supreme Court held that venue for their trials was proper in the judicial district where the civilian work was to be performed, not in the judicial district where the orders were issued. Id. at 220, 76 S.Ct. 739. In our view the case sub judice is distinguishable from the Johnston case. In Johnston the focus of the criminal sanction was upon the failure to perform the alternative civilian duty imposed by the conscientious objector classification. The effects of that failure were felt in the district where the alternative service was to be performed. The criminal section of the Selective Service Act under which the registrants were prosecuted was not designed to enhance the draft board’s jurisdiction over its registrants or to deter disobedience of draft board orders. Rather, the statute was enacted to insure that all draftees served their country either in the military or through alternative service. On the other hand, the focus of the bail jumping statute is to enhance the power of the court over those it admits to bail and to provide a further deterrent to willful disobedience of court orders. Accordingly, the judgment of the district court is reversed and the case is remanded with instructions to reinstate the indictment against appellee Roche. . 18 U.S.C. § 3150 provides: Whoever, having been released pursuant to this chapter, willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both, or (2) if" }, { "docid": "21059348", "title": "", "text": "Roche posted the required 10% cash to effectuate his release. Roche agreed that if his appeal was either affirmed or dismissed he would abide and obey all orders made by the district court concerning the commencement of his prison term. On October 28, 1977 this court affirmed Roche’s conviction and on February 21, 1978 the Supreme Court denied Roche’s petition for a writ of certiorari. On March 9, 1978 the district court ordered Roche to surrender to the United States Marshal in Detroit, Michigan on March 27, 1978 in order to commence serving his prison term. Roche failed to report to the Marshal’s office on that date. On April 19, 1978 authorities apprehended Roche in Pittsburgh, Pennsylvania and returned him to the Western District of Kentucky pursuant to a writ of habeas corpus ad prosequendum. On November 13,1978 a federal grand jury in the Western District of Kentucky returned the instant indictment charging Roche with willful bail jumping in violation of 18 U.S.C. § 3150. On December 20, 1978 the district court granted Roche’s motion to dismiss the indictment on the ground that criminal venue did not lie in the Western District of Kentucky. The Government brings this direct appeal from the dismissal of the indictment. The requirements for appropriate venue in federal criminal prosecutions emanate from article III, section 2, and the sixth amendment to the United States Constitution. These constitutional provisions guarantee a defendant a right to a trial in the state and district where the offense was committed. These constitutional provisions are implemented by Federal Rule of Criminal Procedure 18: Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses. The central inquiry in this appeal thus becomes in what district did Roche allegedly commit the offense of bail jumping. Did the alleged offense occur in the district which admitted Roche to bail and ordered him to report, or did" }, { "docid": "22836157", "title": "", "text": "Mr. Justice Reed delivered the opinion of the Court. These two cases concern the prosecution of three defendants for violations of the provisions of the Universal Military Training and Service Act. 50 U. S. C. App. § 451 et seq. We must determine the proper venue for the trial of these crimes. Defendants Johnston and Sokol resided in the Western Judicial District of Pennsylvania and registered there with the local draft boards. Both were classified 1-0 (conscientious objectors) and both were ordered to report to the boards for assignment of civilian work in lieu of induction. They were instructed to report to separate state hospitals situated in the Eastern Judicial District of Pennsylvania. They reported to the boards but personally refused to comply with the instructions. They were indicted in the Eastern District of Pennsylvania and the indictments were dismissed for lack of jurisdiction on the ground that venue could only be in the Western District. 131 F. Supp. 955. The Court of Appeals for the Third Circuit reversed and remanded the case for trial. That court reasoned that venue was where the defendants failed to report. 227 F. 2d 745. Defendant Patteson, likewise classified 1-0, was ordered to report to his local board in Oklahoma for similar assignment. He, too, reported to the board and there personally refused to comply with instructions to report at the Topeka, Kansas, State Hospital. After indictment in Kansas, the Kansas District Court ordered the case transferred to Oklahoma under Rule 21 (b), Fed. Rules Crim. Proc. The Oklahoma court retransferred the case to Kansas as it thought the venue was there. The Kansas court thereupon dismissed the indictment on the ground that the venue was in Oklahoma. 132 F. Supp. 67. The judgment was affirmed by the Court of Appeals for the Tenth Circuit. 229 F. 2d 257. Each registrant received an order, the pertinent parts of which follow: “selective service system “ORDER TO REPORT FOR CIVILIAN WORK AND STATEMENT OF EMPLOYER “You are ordered to report to the local board named above at m. on the day of , 195 , where" }, { "docid": "14679913", "title": "", "text": "use of false loan documents satisfied the requirement of § 1001 “that the material fact was affirmatively concealed by ruse or artifice, by scheme or device.” United States v. London, 550 F.2d 206, 214 (5th Cir.1977) (emphasis added). However, the transaction alleged in Count IV involved no affirmative acts of concealment as required by London. See id. (“mere omission ... does not make out an offense under the conceal or cover up clause of § 1001”). Rigdon simply took Agent Warren’s cash and spent it. He took no affirmative steps to conceal the transaction. The government argues that Rigdon flew from Orlando to Tallahassee to Orlando to pick up the money. Although this flight may have been an affirmative act, it was not an affirmative act to conceal the transaction. Nor does it appear to have been intended to conceal the transaction. Rigdon’s motion for entry of judgment of acquittal on Count IV for failure to prove a “trick, scheme, or device” should have been granted. D. Venue Rigdon claims venue is proper under 31 U.S.C.A. § 5313 only in Washington, D.C., where CTRs can be filed. Compare Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956) (“where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime”) with 18 U.S.C.A. § 3237(a) (crimes committed in more than one district may be prosecuted “in any district in which such offense was begun, continued or completed”). Rigdon’s claim is frivolous. First, it is undisputed that the alleged crime was begun in the Northern District of Florida. In fact, almost all affirmative acts occurred in the Northern District of Florida. See United States v. Greene, 862 F.2d 1512, 1515-16 (11th Cir.1989) (in case where defendant had false document presented to New York bank, venue was proper in Northern District of Florida where defendant prepared the false document). Second, Rigdon could have mailed the CTRs to Washington, D.C., from the Northern District. In fact, he may have been able to file the" }, { "docid": "22168995", "title": "", "text": "the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period.” 31 U.S.C. § 5322(b). Count 284 alleged that, during calendar year 1999, Bradley III had such a financial interest in a bank account that had an aggregate value of over $2,000,000 and that he willfully failed to report this while committing mail fraud, wire fraud, and money laundering as part of a pattern of illegal activity. Venue, in a criminal case, is constitutionally proper only in the district where the crime was committed. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend VI. The Federal Rules of Criminal Procedure echo that sentiment: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed.R.Crim.P. 18. In the venue context, the failure to perform a legally required act occurs where the act is supposed to be performed. United States v. DiJames, 731 F.2d 758, 762 (11th Cir.1984) (citing Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956)). Failure to file a mandatory report is therefore committed in the district or districts where the report is to be filed. See, e.g., United States v. Quimby, 636 F.2d 86, 90 (5th Cir.1981); see also United States v. Clines, 958 F.2d 578, 583 (4th Cir.1992) (citing United States v. Garman, 748 F.2d 218, 220-21 (4th Cir.1984)). Because there is no dispute that Bradley III had a qualifying interest in a foreign financial institution under 31 U.S.C. § 5314, he was required under the applicable regulation to disclose that interest on his tax return and file a form with the IRS. The form in question, Form 90-22.1, could be filed either by mailing it to the IRS in Detroit, Michigan, or by hand-delivering it to any local IRS office. Bradley III claims that, because he never delivered the form as required, venue was properly laid only in Detroit (the Eastern District of Michigan) or his district of residence (the Southern District of Florida). Relying" }, { "docid": "21059350", "title": "", "text": "the offense occur in the district where Roche failed to report to the United States Marshal as ordered? Since the statute under which Roche was charged does not prescribe venue for the offense, we must determine from other sources the place where the statutory offense must be deemed to have been committed. In Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), the Supreme Court held that “the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” Id. at 635, 81 S.Ct. at 361, quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 90 L.Ed. 1529 (1946); United States v. O’Donnell, 510 F.2d 1190 (6th Cir.), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975). Both parties to this appeal agree that the above standard is applicable in resolving this dispute, but disagree as to its application instantly. The Government convincingly argues that venue for the crime charged in the present indictment properly lies in the Western District of Kentucky because the essence of the offense of bail jumping is an affront to the power of a court to maintain continuing jurisdiction over a bailed defendant and thereby duly administers justice. The Government further argues that the focus of the crime of bail jumping is upon the intended effect that the proscribed act has on the power and dignity of the court which sets bail and not upon the actual physical aspects of the offense. On the contrary, Roche contends the focus of the crime of bail jumping is upon the failure of the bailed defendant to perform a legally required act. Thus, Roche argues, venue lies in the district where the act was required to be performed. Roche strenuously relies upon the Supreme Court’s decision in Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956), as authority for his position. In Johnston the Court held “that where the crime charged is a failure to do a legally required act, the" }, { "docid": "21059354", "title": "", "text": "1954). We are keenly aware that Roche contends the act which constituted the alleged offense occurred in Detroit, Michigan. We feel, however, that the focus of the crime of bail jumping and its primary effect is upon the proper administration of justice in the court which admits one to bail and is akin to a “constructive contempt of court.” United States v. O’Donnell, 510 F.2d 1190 (6th Cir. 1975). As Mr. Justice Holmes stated in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911): [a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he [perpetrator] had been present at the effect, . Therefore, criminal venue properly lies in the Western District of Kentucky. Roche submits the decision of the Supreme Court in Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956), is dispositive of the issue presented and mandates affirmance of the district court. We disagree. In Johnston draft registrants classified as conscientious objectors refused to perform alternative service in hospitals located in judicial districts other than where they were registered. The registrants refused to report to designated hospitals and were prosecuted under the Selective Service Act. The Supreme Court held that venue for their trials was proper in the judicial district where the civilian work was to be performed, not in the judicial district where the orders were issued. Id. at 220, 76 S.Ct. 739. In our view the case sub judice is distinguishable from the Johnston case. In Johnston the focus of the criminal sanction was upon the failure to perform the alternative civilian duty imposed by the conscientious objector classification. The effects of that failure were felt in the district where the alternative service was to be performed. The criminal section of the Selective Service Act under which the registrants were prosecuted was not designed to enhance the draft board’s jurisdiction over its registrants or to deter disobedience of draft board orders. Rather, the statute was enacted to" }, { "docid": "19375117", "title": "", "text": "in the District of Columbia or in the Northern District of Georgia. The failure of the defendant to file in either place was the crime he committed. Where an act can be accomplished in either of two places and the failure to act is the punishable offense, I would hold that venue for the criminal trial would lie in either jurisdiction where defendant could have complied with the law. As I understand it, the court’s decision does not quarrel with this principle. The eases relied on in the opinion involved only one place fixed for the performance of the required act. The court cites no case, nor has any case been cited by the parties, where there are alternative places fixed for performance of the legally required act. The court simply holds that the only statutory place for filing is Washington, D.C., and therefore the offense could be committed only there. In my judgment, however, agency regulations and practices must be considered in making a determination of this kind. Taking those into consideration, there are two alternative places where defendant could have performed the legally required act. The requirement of Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956), that for a crime of failure to do a legally required act, “the place fixed for its performance fixes the situs of the crime,” logically fixes the situs of the crime at two points, where there are two places fixed for performance. The decision here is contrary to the premise of Johnston. Although this defendant happens to live near the District of Columbia, as to others in many parts of the United States, such as California, Hawaii, or Alaska for instance, most of the policy reasons given in the court’s opinion for the venue provisions will be substantially thwarted with the strict application of the decision that the only constitutional venue for this crime is in the District of Columbia." }, { "docid": "14679914", "title": "", "text": "U.S.C.A. § 5313 only in Washington, D.C., where CTRs can be filed. Compare Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956) (“where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime”) with 18 U.S.C.A. § 3237(a) (crimes committed in more than one district may be prosecuted “in any district in which such offense was begun, continued or completed”). Rigdon’s claim is frivolous. First, it is undisputed that the alleged crime was begun in the Northern District of Florida. In fact, almost all affirmative acts occurred in the Northern District of Florida. See United States v. Greene, 862 F.2d 1512, 1515-16 (11th Cir.1989) (in case where defendant had false document presented to New York bank, venue was proper in Northern District of Florida where defendant prepared the false document). Second, Rigdon could have mailed the CTRs to Washington, D.C., from the Northern District. In fact, he may have been able to file the required CTRs with the IRS in the Northern District of Florida. We conclude, then, that Rigdon’s “failure to file” occurred in the Northern District. Cf. Johnston, 351 U.S. at 220, 76 S.Ct. at 742 (where conscientious objectors had to report physically to hospitals, venue lay only where hospitals were located). Venue was properly laid in the Northern District of Florida. III. CONCLUSION For the foregoing reasons, we AFFIRM the jury’s verdict on Counts I — III, but REVERSE as to Count IV. . An off-shore bank is one that does not accept deposits in the United States and therefore is exempt from federal currency reporting requirements. . It was disputed at trial whether Rigdon knew Warren was supposedly involved in dealing drugs. It was undisputed that Rigdon knew Warren’s money had been obtained illegally in some manner. . Rigdon spent the $25,000 and drew on an insufficiently-funded account owned by his mortgage finance business to write Warren the $22,500 cashier’s check. . Agent Warren testified that Rigdon \"indicated that I was the fourth client of" }, { "docid": "19375104", "title": "", "text": "405, 410, 78 S.Ct. 875, 879, 2 L.Ed.2d 873 (1958). Congress has the statutory power to specify where a matter should be prosecuted by the executive branch. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). Yet in analyzing any particular statutory scheme, courts must be guided by the fundamental policies behind the Sixth Amendment and the venue provisions. United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944). In order to find where venue was proper in this case we must first determine where the crime was committed. The essence of the offense charged in this case is Di-James’ failure to file a required trusteeship report, he Sureme Court has consistently held that “where the crime charged is a failure to do a legally required act, the place fixed for performance fixes the situs of the crime.” Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956) (footnote omitted). In Johnston conscientious objectors were ordered by their local draft boards to report for civilian work at state hospitals located in judicial districts other than those in which they resided and were registered. They refused to report for work at the designated places and were indicted for violation of the Universal Military Training and Service Act. Since the place fixed for performance determines the situs of the crime, the Court held that venue was proper only in the judicial districts where the civilian work was to be performed and not in the judicial districts in which they resided and were registered. Id. See also, Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961) (venue for prosecution for false affidavits filed with the NLRB only proper in the District of Columbia where the affidavits had to be filed with the Board); Rumely v. McCarthy, 250 U.S. 283, 39 S.Ct. 483, 63 L.Ed. 983 (1919) (venue for prosecution for failure to report to the federal Alien Property Custodian lay only in the District of Columbia, where the Custodian was located);" }, { "docid": "22836161", "title": "", "text": "cases is fairly presented by the registrants Johnston and Sokol in their petition for certiorari. It reads thus: “Where each petitioner resided in the Western District of Pennsylvania, the Selective Service local board of each was located in the Western District of Pennsylvania, the orders to perform work were issued in the Western District of Pennsylvania and each petitioner did not go beyond his local board in the Western District of Pennsylvania and at all times refused to leave the Western District of Pennsylvania and did not proceed to the Eastern District of Pennsylvania, were the offenses committed in the Western District of Pennsylvania and not in the Eastern District and, therefore, does it violate rights guaranteed by the Sixth Amendment to the Constitution to indict and prosecute each petitioner in the Eastern District of Pennsylvania?” Our analysis of the law and the facts in these cases convinces us that the venue of these violations of the orders lies in the district where the civilian work was to be performed, that is, for Patteson in Kansas, and the Eastern District of Pennsylvania for Johnston and Sokol. We are led to this conclusion by the general rule that where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime. The possibility that registrants might be ordered to report to points remote from the situs of draft boards neither allows nor requires judicial changes in the law of venue. No showing of any arbitrary action appears in these cases. Article III of the Constitution and the Sixth Amendment fix venue “in the State” and “district wherein the crime shall have been committed.” The venue of trial is thereby predetermined, but those provisions do not furnish guidance for determination of the place of the crime. That place is determined by the acts of the accused that violate a statute. This requirement of venue states the public policy that fixes the situs of the trial in the vicinage of the crime rather than the residence of the accused. Cf. United" }, { "docid": "19375103", "title": "", "text": "572 (4th Cir. 1974) (citation omitted), cert. denied, 420 U.S. 990, 95 S.Ct. 1424, 43 L.Ed.2d 671 (1975). A defendant cannot be forced to accept a change of venue against his will. Id. at 572. There are numerous policy reasons for these venue provisions. In order that defendants can be tried before a well-informed jury, the Sixth Amendment directs that the trial be held among those who know the local conditions surrounding the criminal acts. Those jurors should then be able to draw the most accurate inferences from the evidence presented at trial. The venue provisions also seek to avoid the prejudice to a defendant’s case that might result from facing trial in a place where it would be difficult for him to obtain witnesses in preparation for trial. Lastly, since most crimes usually take place in the district where the defendant resides, the venue provisions try to reduce the difficulties to the defendant that would be caused by a trial at a distance from his home and friends. United States v. Cores, 356 U.S. 405, 410, 78 S.Ct. 875, 879, 2 L.Ed.2d 873 (1958). Congress has the statutory power to specify where a matter should be prosecuted by the executive branch. Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961). Yet in analyzing any particular statutory scheme, courts must be guided by the fundamental policies behind the Sixth Amendment and the venue provisions. United States v. Johnson, 323 U.S. 273, 275, 65 S.Ct. 249, 250, 89 L.Ed. 236 (1944). In order to find where venue was proper in this case we must first determine where the crime was committed. The essence of the offense charged in this case is Di-James’ failure to file a required trusteeship report, he Sureme Court has consistently held that “where the crime charged is a failure to do a legally required act, the place fixed for performance fixes the situs of the crime.” Johnston v. United States, 351 U.S. 215, 220, 76 S.Ct. 739, 742, 100 L.Ed. 1097 (1956) (footnote omitted). In Johnston conscientious objectors were ordered by their" }, { "docid": "22836169", "title": "", "text": "United States v. Purchasing Corp., 344 U. S. 923, where in an interpretation of a statutory duty to “forward” a report of shipments under the Tobacco Tax Act, 63 Stat. 884, we approved the District Court judgment that venue for prosecution was in the district of the shipper rather than the district of the receiver of the report. We ruled in the case of Dodez v. United States, 329 U. S. 338, that Dodez had exhausted his administrative remedies and therefore could defend on indictment his failure when he violated an order to report to the local board for work of national importance. Venue was laid in the District of the Board. No question was raised or decided here as to venue. Petition for certiorari, p. 2; Brief of the United States. Furthermore, as the United States points out in this case, at the time of Dodez’ breach, the Government delivered the conscientious objector registrants to the place of work. See Order to Report for Work, R. 155, No. 86,1946 Term. Mr. Justice Douglas, with whom The Chief Justice and Mr. Justice Black concur, dissenting. Patteson, who lives in Oklahoma and defied his draft board there, is required to stand trial in Kansas. Johnston and Sokol, who live in the Western District of Pennsylvania and defied their draft board there, are forced by this decision to stand trial in the Eastern District. Yet each defied the law at home, not in the distant place. Unlike United States v. Anderson, 328 U. S. 699, no act of any kind was committed in the distant district. Unlike Rumely v. McCarthy, 250 U. S. 283, and United States v. Lombardo, 241 U. S. 73, Congress has not specifically selected the failure to perform an act in the distant district and made it a crime. The statutory crime is the failure of a conscientious objector, directed to perform civilian work, “to obey any such order from his local board.” 62 Stat. 612, as amended, 65 Stat. 86, 50 U. S. C. App. § 456 (j). The argument in the case has been like a" }, { "docid": "17224080", "title": "", "text": "a statute makes it a crime to fail to do some required act, venue can lie in the district in which the act should have been done. The Government concludes that venue is proper because Auernheimer and Spitler failed to obtain authorization from about 4,500 people in New Jersey prior to accessing AT & T’s servers. This rule only applies, however, when a preexisting legal duty requires the act that the defendant failed to do. See 1 Wayne R. LaFave, Substantive Criminal Law § 6.2(a) (2d ed.2003) (noting that crimes of omission are generally limited by specific duties such as relationship, statute, contract, assumption of care, creation of peril, controlling the conduct of others, and landowner); accord United States v. Sabhnani 599 F.3d 215, 237 (2d Cir.2010). Failure to perform a required act could confer venue where a defendant should have performed that act when a statute penalizes inaction, such as failure to report to a military draft board (see, e.g., Johnston v. United States, 351 U.S. 215, 219-20, 76 S.Ct. 739, 100 L.Ed. 1097 (1956)), failure to report to prison after being sentenced (see, e.g., United States v. Overaker, 766 F.2d 1326, 1327 (9th Cir.1985)), or failure to file income tax returns (see, e.g., United States v. Garman, 748 F.2d 218, 219 (4th Cir.1984)). Here, Auernheimer was under no such preexisting duty — legal or otherwise. Like most statutes, the charged portion of the CFAA punishes affirmative acts, not inaction. His failure to obtain authorization cannot confer venue in every district in which a potential victim lived. C. Finally, the Government argues that even if venue were improper, we should apply harmless error analysis and disregard the error because it did “not affect substantial rights.” Fed.R.Crim.P. 52(a). Although the Government makes this argument only in passing — it occupies less than one page of its 118-page brief — we feel obliged to address it. The Government contends that its choice of forum actually benefitted Auernheimer, because locating his trial in Newark, New Jersey “enhance[d] his ability to attract and retain experienced and capable counsel on a pro bono basis.”" }, { "docid": "21059351", "title": "", "text": "indictment properly lies in the Western District of Kentucky because the essence of the offense of bail jumping is an affront to the power of a court to maintain continuing jurisdiction over a bailed defendant and thereby duly administers justice. The Government further argues that the focus of the crime of bail jumping is upon the intended effect that the proscribed act has on the power and dignity of the court which sets bail and not upon the actual physical aspects of the offense. On the contrary, Roche contends the focus of the crime of bail jumping is upon the failure of the bailed defendant to perform a legally required act. Thus, Roche argues, venue lies in the district where the act was required to be performed. Roche strenuously relies upon the Supreme Court’s decision in Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956), as authority for his position. In Johnston the Court held “that where the crime charged is a failure to do a legally required act, the place fixed for its performances fixes the situs of the crime.” Id. at 220, 76 S.Ct. at 742 (footnote omitted). Our review of the authorities in this area of the law has provided little assistance in resolving this constitutional issue. We agree with the parties that the resolution of this issue depends upon the nature of the crime alleged and the act or acts constituting it. We find the Government’s arguments on this point persuasive and hold the alleged crime in this case occurred in the Western District of Kentucky. It is well settled that one released on bail under the Bail Reform Act is under the continuing jurisdiction of the district court which admitted that person to bail. See, e. g., United States v. Harris, 544 F.2d 947 (8th Cir. 1976). Also, as a condition of his release a bailed defendant agrees to obey all orders of the court which released him. In our view when a bailed defendant willfully disobeys a court order requiring him to report for commencement of his prison term," }, { "docid": "21059352", "title": "", "text": "place fixed for its performances fixes the situs of the crime.” Id. at 220, 76 S.Ct. at 742 (footnote omitted). Our review of the authorities in this area of the law has provided little assistance in resolving this constitutional issue. We agree with the parties that the resolution of this issue depends upon the nature of the crime alleged and the act or acts constituting it. We find the Government’s arguments on this point persuasive and hold the alleged crime in this case occurred in the Western District of Kentucky. It is well settled that one released on bail under the Bail Reform Act is under the continuing jurisdiction of the district court which admitted that person to bail. See, e. g., United States v. Harris, 544 F.2d 947 (8th Cir. 1976). Also, as a condition of his release a bailed defendant agrees to obey all orders of the court which released him. In our view when a bailed defendant willfully disobeys a court order requiring him to report for commencement of his prison term, the nature of that failure constitutes an affront to the power and dignity of the court which admitted him to bail and a most flagrant breach of the conditions of his lawful release. The crime of bail jumping diminishes the power of a court to control those properly within its jurisdiction and afflicts that court with its detrimental effects. We find support for our interpretation not only in the words of the statute itself, but also from the statutory scheme in which the separate offense of bail jumping is found. It seems clear that the separate offense of bail jumping was designed and implemented by Congress in order to complement the relatively weak arsenal of the district courts in their efforts to deter bail jumping. Congress perceived the traditional sanctions of forfeiture and criminal contempt as ineffective deterrents. The separate criminal sanction was enacted with a view to aid in the deterrence of bail jumping and enhance the effective administration of justice in the courts. See Cong. Rec., 83d. Cong. 2d Sess. 11295-97 (July 21," }, { "docid": "21059353", "title": "", "text": "the nature of that failure constitutes an affront to the power and dignity of the court which admitted him to bail and a most flagrant breach of the conditions of his lawful release. The crime of bail jumping diminishes the power of a court to control those properly within its jurisdiction and afflicts that court with its detrimental effects. We find support for our interpretation not only in the words of the statute itself, but also from the statutory scheme in which the separate offense of bail jumping is found. It seems clear that the separate offense of bail jumping was designed and implemented by Congress in order to complement the relatively weak arsenal of the district courts in their efforts to deter bail jumping. Congress perceived the traditional sanctions of forfeiture and criminal contempt as ineffective deterrents. The separate criminal sanction was enacted with a view to aid in the deterrence of bail jumping and enhance the effective administration of justice in the courts. See Cong. Rec., 83d. Cong. 2d Sess. 11295-97 (July 21, 1954). We are keenly aware that Roche contends the act which constituted the alleged offense occurred in Detroit, Michigan. We feel, however, that the focus of the crime of bail jumping and its primary effect is upon the proper administration of justice in the court which admits one to bail and is akin to a “constructive contempt of court.” United States v. O’Donnell, 510 F.2d 1190 (6th Cir. 1975). As Mr. Justice Holmes stated in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735 (1911): [a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he [perpetrator] had been present at the effect, . Therefore, criminal venue properly lies in the Western District of Kentucky. Roche submits the decision of the Supreme Court in Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956), is dispositive of the issue presented and mandates affirmance of the district court. We disagree." } ]

[ { "docid": "23371572", "title": "", "text": "EDWARDS, Circuit Judge. This case poses three questions of vital importance to protection of the water resources of these United States: 1) Did Congress in adopting the Federal Water Pollution Control Act Amendments of 1972 intend to control both discharges of pollutants directly into navigable waters and discharges of pollutants into nonnavigable tributaries which flowed into navigable rivers? We answer this question “yes.” 2) Does Congress have constitutional authority under its interstate commerce powers to prohibit discharge of pollutants into nonnavigable tributaries of navigable streams? We answer this question “yes.” 3) Assuming the affirmative answers set forth above, under the Federal Water Pollution Control Act is the government required to bear the burden of proof to establish not only that (as here) pollutants were discharged into a non-navigable tributary of a navigable river, but that in fact these same pollutants reached and polluted the navigable river? We answer this question “no.” Defendant-appellant Ashland Oil was indicted for failing “immediately” to report the discharge of 3,200 gallons of oil into the water of Little Cypress Creek on February 20, 1973. The indictment alleged violation of 33 U.S.C. § 1321(b)(5) of the Federal Water Pollution Control Act Amendments of 1972. The statutory provisions directly concerned are: “(5) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal ease, except a prosecution for perjury or for giving a false statement.” 33 U.S.C. § 1321 (b)(5) (1972). “(3) The discharge of oil or hazardous substances into or upon" } ]

[ { "docid": "15178592", "title": "", "text": "which by executive order, Exec.Order No. 11,548, 3 C.F.R. § 539 (1972), is the Coast Guard. See also 33 C.F.R. § 153.100 (1972); 40 C.F.R. § 110.9 (1972). . The 1972 amendments authorize the President to select other hazardous substances whose discharge should be prohibited and thus subject to mandatory disclosure. 33 U.S.C. § 1321(b)(5) (Supp. 1974). . The opinion is reported at 377 F.Supp. 558 (E.D.La.1974). . The statute reads in pertinent part: Any owner or operator of any vessel, onshore facility, or offshore facility from which oil is knowingly discharged in violation of paragraph (2) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $10,000 for each offense. 33 U.S.C. § 1161(b)(5) (1970). The 1972 amendments reduce the maximum fine to $5,000 and eliminate the scienter requirement. 33 U.S.C. § 1321(b)(6) (Supp.1974). . Every case cited by the lower courts or by appellees in which the Supreme Court analyzed the civil-criminal nature of a penalty concerns some constitutional right afforded defendants in criminal cases. See, e. g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963) (fifth and sixth amendments); Trap v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (fifth and eighth amendments); Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938) (fifth amendment); cf. Charney, The Need for Constitutional Protections for Defendants in Civil Penalty Cases, 59 Cornell L.Rev. 478, 491 (1974). Compare Atlas Roofing Co. v. OSHRC, 518 F.2d 990 (5th Cir. 1975), cert. granted on other grounds, 424 U.S. 964, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976) (sixth amendment). . Appellees concede lack of a self-incrimination violation. While they raise in passing one constitutional objection based on a due-process, fundamental-fairness notion, we reject the suggestion that by fashioning a constitutionally-required immunity provision to protect individuals, Congress thereby “unfairly deprived” corporate entities of a protection they never had. . It is necessary to examine the nature of the penalties only when the owner or operator is an" }, { "docid": "6351520", "title": "", "text": "legislative history of the predecessor of § 1321 indicates that Congress was concerned with large oil spills as evidenced by the break-up of the tanker Torrey Canyon off the coast of England and the ruination of Santa Barbara’s beaches by offshore drilling. H.R.Rep. No. 91-127, 1970 U.S. Code Cong. & Ad.News pp. 2691, 2692. Seen in this light, the primary concern is the preservation of the environment, not the imposition of criminal penalties. However, the existence of criminal sanctions outside of the section is explicitly acknowledged. To further cooperation and “to facilitate the mitigation of pollution damage”, Apex Oil Co. v. United States, 530 F.2d 1291, 1292 (8th Cir. 1976), notification of an oil spill by a discharger or “exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” § 1321(b)(5). The same subsection also provides for a separate criminal penalty should a person fail to notify the appropriate authorities as soon as he has knowledge of any discharge of oil or a hazardous substance. Concerned perhaps that the broad Congressional policy enunciated in § 1321(b)(1) that there should be no discharges of oil or hazardous substances into or upon the navigable waters might be thought to supersede other sections of the Act, the Conference report states that: Notwithstanding the broad definition of “discharge” in subsection (a)(2) the provisions of this section are not intended to apply to the discharge of oil from any onshore or offshore facility, which discharge is not in harmful quantities and is pursuant to, and not in violation of, a permit issued to such facility under section 402 [33 U.S.C. § 1342] of this Act. S.Conf.Rep. 92-1236, 1972 U.S.Code Cong. & Ad.News pp. 3776, 3811. However, if defendant’s contentions are correct and gasoline is not a pollutant within the meaning of § 1362(6), the protective provisions of § 1342 would be inapplicable. Section 1342(a)(1) provides: Except as provided in sections 1328 and 1344 of this title the Administrator may, after opportunity for public hearing, issue a permit for" }, { "docid": "15493484", "title": "", "text": "in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation, shall be considered by such Secretary. . Section 1321(b)(5) provides in pertinent part: Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person (A) in charge of a vessel from which oil or a hazardous substance is discharged in violation of paragraph (3)(i) of this subsection, ... or (C) in charge of an onshore facility or an offshore facility, who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. . The regulation provides in full: § 110.3 Discharge into navigable waters harmful. For purposes of section 311(b) of the Federal Act [33 U.S.C.A. § 1321(b)], discharges of such quantities of oil into or upon the navigable waters of the United States or adjoining shorelines determined to be harmful to the public health or welfare of the United States, at all times and locations and under ail circumstances and" }, { "docid": "22643826", "title": "", "text": "liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section 311 (b)(5) also provided for a form of “use immunity,” specifying that “[notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” 33 U. S. C. § 1321 (b)(5). Section 311 (b) (6) provided for the imposition of a “civil penalty” against “[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation” of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act. In assessing penalties, the Secretary of the appropriate agency was to take into account “the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation. . . .” 33 TJ. S. C. § 1321 (b)(6). According to § 311 (k) of the Act, funds collected from the assessment of penalties under § 311 (b) (6) were to be paid into a “revolving fund” together with “other funds received . . . under this section” and any money appropriated to the revolving fund by Congress. See 33 U. S. C. § 1321 (k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil and hazardous substances discharged into navigable waters and to defray the costs of administering the Act. 33 U. S. C. § 1321 (?). Another section of the Act allowed the United States Government to collect the costs of removal, containment, or dispersal of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had been identified. 33 U. S. C. § 1321 (f). On or about March 23, 1975, oil escaped from an oil retention" }, { "docid": "5252655", "title": "", "text": "December 26, 1975, Ward appealed the assessment to the Commandant of the Coast Guard, which appeal was denied on February 11, 1976. On April 13,1976, Ward brought action in this court for injunctive and declaratory relief, praying that a three-judge court declare unconstitutional and enjoin the enforcement of certain provisions of 33 U.S.C. §§ 1318, 1319, 1321 and of 40 C.F.R. 110. On June 4, 1976, the United States of America sued Ward and L. O. Ward Oil and Gas Operations to collect the unpaid penalty. The actions have been consolidated. Now before the court for disposition is defendants’ motion for judgment on the pleadings or for summary judgment. Defendants argue that they are entitled to judgment as a matter of law because the penalty imposed is criminal or quasi-criminal and thus the self-reporting provision violates the protection against self-incrimination afforded by the Fifth Amendment to the Constitution of the United States; because the penalty is imposed without regard to fault, and such strict liability violates the protection against undue process afforded by the Fifth Amendment; and because the regulatory “sheen” test is not such a definition of harmful quantities of spillage as is authorized by the FWPCA. CHARACTERIZATION OF THE PENALTY IMPOSED “The question of whether a given sanction is civil or criminal is one of statutory construction.\" One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S.Ct. 489, 493, 34 L.Ed.2d 438 (1972); Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917 (1938). The sections of the FWPCA under attack read in pertinent part: “(5) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more" }, { "docid": "15178591", "title": "", "text": "spill but before the T/B CTCO spill. . The 1970 statute reads in pertinent part: Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil from such vessel or facility in violation of paragraph (2) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. 33 U.S.C. § 1161(b)(4) (1970). The wording of the 1972 statute is identical, with two substantive changes not relevant here. See note 4 infra. . The statute requires making a report to “the appropriate [federal] agency,” which by executive order, Exec.Order No. 11,548, 3 C.F.R. § 539 (1972), is the Coast Guard. See also 33 C.F.R. § 153.100 (1972); 40 C.F.R. § 110.9 (1972). . The 1972 amendments authorize the President to select other hazardous substances whose discharge should be prohibited and thus subject to mandatory disclosure. 33 U.S.C. § 1321(b)(5) (Supp. 1974). . The opinion is reported at 377 F.Supp. 558 (E.D.La.1974). . The statute reads in pertinent part: Any owner or operator of any vessel, onshore facility, or offshore facility from which oil is knowingly discharged in violation of paragraph (2) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $10,000 for each offense. 33 U.S.C. § 1161(b)(5) (1970). The 1972 amendments reduce the maximum fine to $5,000 and eliminate the scienter requirement. 33 U.S.C. § 1321(b)(6) (Supp.1974). . Every case cited by the lower courts or by appellees in which the Supreme Court analyzed the civil-criminal nature of a penalty concerns" }, { "docid": "22643844", "title": "", "text": "charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” Section 311 (b) (6) was amended by the Federal Water Pollution Control Act Amendments of 1978, Pub. L. 95-576, 92 Stat. 2468, to authorize civil penalties of up to $50,000 per offense, or up to $250,000 per offense in cases where the discharge was the result of willful negligence or misconduct. At the time of the discharge in this case, § 311 (b)(6), as set forth in 33 U. S. C. §1321 (b)(6), read: “Any owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation of paragraph (3) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $5,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon in compromise, the appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the gravity of the violation, shall be considered by such Secretary." }, { "docid": "5655487", "title": "", "text": "Coast Guard as soon as he has knowledge of any discharge of oil or other hazardous substance into the navigable waters of the United States. Failure to immediately report such a discharge subjects the offending party to criminal sanctions of not more than $10,000 or imprisonment for not more than one year, or both. . Although § 2282 has since been repealed it remains effective as to pending suits. Act of August 12, 1976, P.L. No. 94-381, 90 Stat. 1119. . See: Atlas Roofing Company, Inc. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990 (5th Cir. 1975), aff’d, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). . Commandant Instruction 5922. IIA is reprinted in the Appendix to United States v. LeBeouf Brothers Towing Company, Inc., 377 F.Supp. 558 (E.D. La. 1974), reversed, 537 F.2d 149 (5th Cir. 1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977). . Prior to 1972, the civil penalty provision in question, then codified at 33 U.S.C. § 1161(b)(5), specifically included the element of acting “knowingly” and provided for a maximum penalty of $10,000. . We were not presented with and we do not decide the question of whether 33 U.S.C. § 1321(b)(6) is criminal in nature for any purpose other than protecting an individual’s right against self-incrimination under the Fifth Amendment £b the United States Constitution. . We wish to emphasize that our holding today does not preclude the use of the notification of discharge filed pursuant to sub-part (b)(5) in a proceeding for assessment and determination of the civil penalties under sub-part (b)(6) where a corporation, rather than an individual, is involved. See: United States v. Allied Towing Corporation, 578 F.2d 978 (4th Cir. 1978); United States v. LeBeouf Brothers Towing Company, Inc., supra." }, { "docid": "2783501", "title": "", "text": "summary judgment for the plaintiff United States in the amount of one dollar. So ordered. ■ . No record was made, of the informal hearing conducted by the Coast Guard, so the administrative record consists primarily of correspondence and intra-office memoranda. Included is a one-page report of the administrative hearing, apparently prepared by the hearing officer, which varies somewhat from the version of the facts stipulated in the present action. The Government conceded at oral argument that the defendant is entitled herein to a trial de novo. . At the time of this incident, federal regulations did not require such valves to he locked. -In December 1973, regulations were adopted requiring locks on the valves of • such storage tanks, as well as the provision of containment pits. 40 C.F.R. § 112.-7(2) (ii), (9) (ii). . Originally enacted in 1948, the Federal Water Pollution Control Act has been amended often, most significantly in the Federal Water Pollution Control Act Amendments of 1972, Pub.L. 92-500, 86 Stat. 816, which effected substantial amendment, reorganization and expansion of the act’s provisions. Since the 1972 amendments, the FWPCA, formerly codified as 33 U.S.C. § 1151 et seq., has been re-designated 33 U.S.C. § 1251 et seq. See notes on “Codification” following 33 U.S.C. § 1151 (1970) and 33 U.S.C. § 1251 (Supp.1973). Since the section numbers sufficiently indicate the pre- and post-1972 codifications, citations herein do not specify the 1973 Supplement to the United States Code unless necessary for clarity. . 33 U.S.C. § 1321(b) (5) provides: “Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of \"such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or" }, { "docid": "5655472", "title": "", "text": "statutory provisions here in question, we must analyze (i) the Congressional intent discernible from the face of the statute, (ii) the enforcement mechanism of the statute, and (iii) the indicators of Congressional intent enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, supra. Statutory Language The FWPCA was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of these goals, Congress specifically prohibited the discharge of oil or other hazardous substances into the navigable waters of the United States and created a statutory enforcement scheme to carry out its mandates. See: 33 U.S.C. § 1321. Under the provisions of this enforcement scheme, every owner or operator of a discharging facility is required to immediately notify the Coast Guard of a discharge of oil or other hazardous substance. Should such an owner-operator fail to do so, he may be fined not more than $10,000, imprisoned for not more than one year, or both. 33 U.S.C. § 1321(b)(5). In addition to this self-reporting requirement, owners and operators of discharging facilities are liable for clean-up costs, subject only to the defenses of act of God, act of war, negligence of the United States government, or act or omission of a third party. 33 U.S.C. § 1321(f). In the event that the discharged substance is determined to be “nonremovable,” civil penalties may be assessed based upon toxicity, degradability, and the dispersal characteristics of the substances discharged. 33 U.S.C. § 1321(b)(2)(B). This civil penalty is again subject to the above-enumerated defenses. Also, each owner or operator of a discharging facility is automatically assessed a “civil penalty” in an amount of not more than $5,000 for each offense. 33 ’U.S.C. § 1321(b)(6). The assessment of this penalty is without regard to fault and subject to no defenses. In determining the amount of the penalty, the Coast Guard is directed, by statute, to consider the “appropriateness of such penalty to the size of the business of the owner or operator charged, the effect on the owner or operator’s ability to continue in business, and the" }, { "docid": "5655485", "title": "", "text": "such a situation, the imposition of a large penalty would be excessive. Thus, we conclude that this indicator leans in favor of the penal nature of the Act. We are reluctant to set aside a statutory enforcement scheme created under an Act of Congress, Flemming v. Nestor, supra. Nevertheless, we must recognize and abide the maxim that the privilege against self-incrimination should be liberally construed. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). A detailed examination of the language of the statute, the administrative enforcement scheme, and the indicators of Congressional intent, lead us to conclude that the civil penalty found in 33 U.S.C. § 1321(b)(6) is criminal in nature. For all of the reasons above related and discussed, we therefore hold that the compelled notification of discharge required to be filed with the Coast Guard pursuant to § 1321(b)(5) cannot be used in determining either liability for or the amount of civil penalties imposed under § 1321(b)(6). We do not, however, strike down the self-reporting requirements of § 1321(b)(5) or the statute requiring imposition of civil penalties under 1321(b)(6). In our view, it is permissible to assess civil penalties based on a discharge of oil or other hazardous substance under the Act, provided that the evidence used to establish the discharge is derived from a source wholly independent of the compelled disclosure required by § 1321(b)(5). See: Harrison v. United States, supra; Wong Sun v. United States, supra. Reversed and remanded for further proceedings consistent with this opinion in the collection suit, No. 76 — 0546E of the District Court; there being no need for injunctive relief as sought in No. 76-0303E, that cause shall be dismissed on remand. . The Arkansas River is navigable in fact. Therefore, Boggie Creek, as its tributary, is also a navigable water of the United States for purposes of the FWPCA. See: 33 U.S.C.A 1362(7); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317 (6th Cir. 1974). . § 1321(b)(5) of 33 U.S.C. requires any person in charge of an on-shore facility to immediately notify the" }, { "docid": "8851009", "title": "", "text": "* shall, as soon as he has knowledge of any discharge of oil * * * from such * * * facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notifications shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. The appellant argues that only an individual, or natural person, and not a corporation, can be a “person in charge” within the meaning of the statute and, hence, it cannot be prosecuted. A “person,” as defined by the Act, “includes an individual, firm, corporation, association, and a partnership[.]” 33 U.S.C. § 1321(a)(7) (Emphasis supplied.) Apex Oil, thus, raises a distinction between the meaning of “person” when used alone and its meaning when used in conjunction with the words “in charge.” It is a distinction which the Act does not itself make. United States v. Hougland Barge Line, Inc., 387 F.Supp. 1110, 1113 (W.D.Pa.1974). See 33 U.S.C. § 1321(a). It is, moreover, a distinction that cannot be supported by the purposes of the Act. Section 1321(b)(5) prompts the timely reporting and discovery of oil discharges into or upon the navigable waters of the United States to facilitate the mitigation of pollution damage. It is designed to insure, so far as possible, that small discharges will not go undetected and that the possibility of effective abatement will not be lost. United States v. Mobil Oil Corporation, 464 F.2d 1124, 1127 (5th Cir. 1972); United States v. General American Transportation Corp., 367 F.Supp. 1284, 1288 (D.N.J.1973). The purpose is best served by holding the corporation responsible under the provision of the statute. We agree with the analysis of the Fifth Circuit: The owner-operator of a vessel .or a vacility [sic]" }, { "docid": "22643827", "title": "", "text": "business, and the gravity of the violation. . . .” 33 TJ. S. C. § 1321 (b)(6). According to § 311 (k) of the Act, funds collected from the assessment of penalties under § 311 (b) (6) were to be paid into a “revolving fund” together with “other funds received . . . under this section” and any money appropriated to the revolving fund by Congress. See 33 U. S. C. § 1321 (k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil and hazardous substances discharged into navigable waters and to defray the costs of administering the Act. 33 U. S. C. § 1321 (?). Another section of the Act allowed the United States Government to collect the costs of removal, containment, or dispersal of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had been identified. 33 U. S. C. § 1321 (f). On or about March 23, 1975, oil escaped from an oil retention pit at a drilling facility located near Enid, Okla., and eventually found its way into Boggie Creek, a tributary of the Arkansas River system. At the time of the discharge, the premises were being leased by respondent L. 0. Ward, who was doing business as L. 0. Ward Oil & Gas Operations. On April 2, 1975, respondent Ward notified the regional office of the Environmental Protection Agency (EPA) that a discharge of oil had taken place. Ward later submitted a more complete written report of the discharge, which was in turn forwarded to the Coast Guard, the agency responsible for assessing civil penalties under §311 (b)(6). After notice and opportunity for hearing, the Coast Guard assessed a civil penalty against respondent in the amount of $500. Respondent filed an administrative appeal from this ruling, contending, inter alia, that the reporting requirements of § 311 (b)(5) of the Act violated his privilege against compulsory self-incrimination. The administrative appeal was denied. On April 13, 1976, Ward filed suit in the United States District Court for the Western" }, { "docid": "5655471", "title": "", "text": "Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). The basic issue we must here confront is: Whether the civil penalties prescribe in sub-part (b)(6) are, in reality, criminal in nature thereby precluding use of a compelled report made pursuant to sub-part (b)(5) of § 1321. Judicial determinations as to the civil or penal nature of a particular provision generally center around the issue of “whether the legislative aim in providing the sanction was to punish the individual for engaging in the activity involved or to regulate the activity in question.” Telephone News-System, Inc. v. Illinois Bell Telephone Company, 220 F.Supp. 621, 630 (N.D. Ill. 1963), aff’d, 376 U.S. 782, 84 S.Ct. 1134, 12 L.Ed.2d 83 (1964); Kennedy v. Mendoza-Martinez, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). In undertaking our assessment of the statutory provisions here in question, we must analyze (i) the Congressional intent discernible from the face of the statute, (ii) the enforcement mechanism of the statute, and (iii) the indicators of Congressional intent enumerated by the Supreme Court in Kennedy v. Mendoza-Martinez, supra. Statutory Language The FWPCA was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). In furtherance of these goals, Congress specifically prohibited the discharge of oil or other hazardous substances into the navigable waters of the United States and created a statutory enforcement scheme to carry out its mandates. See: 33 U.S.C. § 1321. Under the provisions of this enforcement scheme, every owner or operator of a discharging facility is required to immediately notify the Coast Guard of a discharge of oil or other hazardous substance. Should such an owner-operator fail to do so, he may be fined not more than $10,000, imprisoned for not more than one year, or both. 33 U.S.C. § 1321(b)(5). In addition to this self-reporting requirement, owners" }, { "docid": "5655486", "title": "", "text": "or the statute requiring imposition of civil penalties under 1321(b)(6). In our view, it is permissible to assess civil penalties based on a discharge of oil or other hazardous substance under the Act, provided that the evidence used to establish the discharge is derived from a source wholly independent of the compelled disclosure required by § 1321(b)(5). See: Harrison v. United States, supra; Wong Sun v. United States, supra. Reversed and remanded for further proceedings consistent with this opinion in the collection suit, No. 76 — 0546E of the District Court; there being no need for injunctive relief as sought in No. 76-0303E, that cause shall be dismissed on remand. . The Arkansas River is navigable in fact. Therefore, Boggie Creek, as its tributary, is also a navigable water of the United States for purposes of the FWPCA. See: 33 U.S.C.A 1362(7); United States v. Ashland Oil and Transportation Co., 504 F.2d 1317 (6th Cir. 1974). . § 1321(b)(5) of 33 U.S.C. requires any person in charge of an on-shore facility to immediately notify the Coast Guard as soon as he has knowledge of any discharge of oil or other hazardous substance into the navigable waters of the United States. Failure to immediately report such a discharge subjects the offending party to criminal sanctions of not more than $10,000 or imprisonment for not more than one year, or both. . Although § 2282 has since been repealed it remains effective as to pending suits. Act of August 12, 1976, P.L. No. 94-381, 90 Stat. 1119. . See: Atlas Roofing Company, Inc. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990 (5th Cir. 1975), aff’d, 430 U.S. 442, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977). . Commandant Instruction 5922. IIA is reprinted in the Appendix to United States v. LeBeouf Brothers Towing Company, Inc., 377 F.Supp. 558 (E.D. La. 1974), reversed, 537 F.2d 149 (5th Cir. 1976), cert. denied, 430 U.S. 987, 97 S.Ct. 1688, 52 L.Ed.2d 383 (1977). . Prior to 1972, the civil penalty provision in question, then codified at 33 U.S.C. § 1161(b)(5), specifically included the element" }, { "docid": "22643825", "title": "", "text": "Me. Justice Rehnquist delivered the opinion of the Court. The United States seeks review of a decision of the United States Court of Appeals for the Tenth Circuit that a proceeding for the assessment of a “civil penalty” under § 311 (b) (6) of the Federal Water Pollution Control Act (FWPCA) is a “criminal case” within the meaning of the Fifth Amendment’s guarantee against compulsory self-incrimination. We granted certiorari, 444 U. S. 939, and now reverse. I At the time this case arose, § 311 (b) (3) of the FWPCA prohibited the discharge into navigable waters or onto adjoining shorelines of oil or hazardous substances in quantities determined by the President to be “harmful.” Section 311 (b) (5) of the Act imposed a duty upon “any person in charge of a vessel or of an onshore facility or an offshore facility” to report any discharge of oil or a hazardous substance into navigable waters to the “appropriate agency” of the United States Government. Should that person fail to supply such notification, he or she was liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section 311 (b)(5) also provided for a form of “use immunity,” specifying that “[notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” 33 U. S. C. § 1321 (b)(5). Section 311 (b) (6) provided for the imposition of a “civil penalty” against “[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation” of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act. In assessing penalties, the Secretary of the appropriate agency was to take into account “the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator’s ability to continue in" }, { "docid": "5660684", "title": "", "text": "defendant denied the propriety of any penalty owed to the government, the matter was referred by the Coast Guard to the United States Attorney, who filed this lawsuit in order to collect the $2,500 penalty. Sub-part (b)(4) of § 1161 of the Act sets forth the mandatory notification procedures activated by an unlawful discharge of oil into or upon the navigable waters of the United States; failure to notify the proper authorities results in the imposition of penal sanctions, although a complying party enjoys attend- ■ ant immunity from criminal prosecution. This sub-section reads: (4) Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil from such vessel or facility in violation of paragraph (2) of this subsection, immediately notify the appropriate agency of the United States Government of such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. The following paragraph, albeit self-described as a “civil” penalty, is the gravamen of the current litigation. Title 33, United States Code, Section 1161(b)(5) requires that: (5) Any owner or operator of any vessel, onshore facility, or offshore facility from which oil is knowingly discharged in violation of paragraph (2) of this subsection shall be assessed a civil penalty by the Secretary of the department in which the Coast Guard is operating of not more than $10,000 for each offense. No penalty shall be assessed unless the owner or operator charged shall have been given notice and opportunity for a hearing on such charge. Each violation is a separate offense. Any such civil penalty may be compromised by such Secretary. In determining the amount of the penalty, or the amount agreed upon" }, { "docid": "2387763", "title": "", "text": "PER CURIAM: Allied Towing Corporation appeals from a judgment entered against it by the district court in the amount of $12,500.00 covering fourteen separate civil penalties assessed by the Coast Guard pursuant to provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1321(b)(6). The penalties were assessed against Allied because of spills of petroleum products which occurred between May 1, 1974, and May 9, 1975. In each case notice of the spill was given to the Coast Guard either by Allied or at its direction as required by 33 U.S.C. § 1321(b)(5) which provides: Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility * * * immediately notify the appropriate agency of the United States Government of such discharge. Any such person * * * who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement. Allied admits the factual allegation of each spill, but contends that the penalties assessed against it were criminal in nature and under the use immunity provision of Section 1321(b)(5) the information provided by its notification compliance was improperly used by the Government as the basis of its complaint. Allied further contends that the use of such information was violative of its rights under the Fifth and Fourteenth Amendments to the Constitution. Allied’s constitutional argument is patently without merit since a corporation is not entitled to the Fifth Amendment privilege against self-incrimination, California Bankers Assn. v. Shultz, Secretary of the Treasury, et al., 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974), and accordingly, the scope of use immunity under Section 1321(b)(5) is solely a matter of statutory" }, { "docid": "2783470", "title": "", "text": "no discharges of oil or hazardous substances into or upon the navigable waters of the United States . . . .” 33 U.S.C. § 1321(b) (1). The statute employs several devices to accomplish this goal, including the following: (1) It makes it a crime for the' “person in charge” of a vessel or facility to fail to inform the appropriate federal agency immediately of any discharge of oil or a hazardous substance, but provides use immunity from prosecution “in any criminal case” except perjury or giving a false statement. 33 U.S.C. § 1321(b)(5). (2) It authorizes the President to act to remove or arrange for the removal of such oil or hazardous substance unless he determines that the owner of the vessel or facility from which the discharge occurs will remove it properly. 33 U.S.C. § 1321(c)(1). (3) Subject to specified limits and defenses, including the defense that a third party was the sole cause of the discharge, it makes the owner of a facility from which oil or a hazardous substance is discharged liable to the United States Government for the actual costs incurred in clean-up operations. 33 U.S.C. § 1321 (f) (2) . (4) Subject to the same defenses, it makes the Owner of a facility from which a hazardous substance determined to be non-removable is discharged liable for a “civil penalty,” varying in amount in relation to such factors as toxicity, degradability and dispersal characteristics of the substance and the amount discharged. 33 U.S.C. § 1321(b)(2)(B)(ii)-(iv). (5) Subject to specified defenses and limits, it makes third parties who were solely responsible for a discharge of oil or a hazardous substance liable to the United States for the actual costs incurred in clean-up operations. 33 U.S.C. § 1321(g) and (h) (6) It authorizes the owner of a facility from which oil or a hazardous substance was discharged to bring suit in the Court of Claims and recover from the United States his reasonable costs incurred in clean-up operations upon showing that the discharge was caused solely by the act or omission of a third party or by other" }, { "docid": "2783502", "title": "", "text": "the act’s provisions. Since the 1972 amendments, the FWPCA, formerly codified as 33 U.S.C. § 1151 et seq., has been re-designated 33 U.S.C. § 1251 et seq. See notes on “Codification” following 33 U.S.C. § 1151 (1970) and 33 U.S.C. § 1251 (Supp.1973). Since the section numbers sufficiently indicate the pre- and post-1972 codifications, citations herein do not specify the 1973 Supplement to the United States Code unless necessary for clarity. . 33 U.S.C. § 1321(b) (5) provides: “Any person in charge of a vessel or of an onshore facility or an offshore facility shall, as soon as he has knowledge of any discharge of oil or a hazardous substance from such vessel or facility in violation of paragraph (3) of this subsection, immediately notify the appropriate agency of the United States Government of \"such discharge. Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000, or imprisoned for not more than one year, or both. Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.” . 33 U.S.C. § 1321(c) (1) provides: “Whenever any oil or a hazardous substance is discharged, into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone, the President is authorized to act to remove or arrange for the removal of such oil or substance at any time, unless he determines such removal will be done properly by the owner or operator of the vessel, onshore facility, or offshore facility from which the discharge occurs.” . 33 U.S.C. § 1321(f)(2) provides in pertinent part: “Except where an owner or operator of an onshore facility can prove that a discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party" } ]

[ { "docid": "14925970", "title": "", "text": "a competent bar to prosecute their claims. 25 F.3d at 1035. Denying interim fee awards would clearly make it more difficult for claimants to secure competent counsel because delaying fee payments decreases the effective value of awards.... Interim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained. Id. at 1352. Where the claimant establishes that the cost of litigation has imposed an undue hardship and that there exists a good faith basis for the claim, it is proper for the special master to award interim attorneys’ fees. For purposes of jurisdiction under 42 U.S.C. § 300aa-12, a decision on attorneys’ fees and costs is a decision on compensation. Subsection 12(d)(3)(A) provides the Court of Federal Claims with jurisdiction to review decisions under the Vaccine Act. 42 U.S.C. § 300aa-12(d)(3)(A). Specifically, this subsection provides that “[a] special master to whom a petition has been assigned shall issue a decision on such petition with respect to whether compensation is to be provided under the Program and the amount of such compensation,” and it further provides that “[t]he decision of the special master may be reviewed by the United States Court of Federal Claims in accordance with subsection (e) of this section.” Id. Thus, the Court of Federal Claims has jurisdiction to review a decision by the special master concerning compensation. The Vaccine Act indicates that compensation includes attorneys’ fees and costs: In awarding compensation on a petition filed under section 300aa — 11 of this title the special master or court shall also award as part of such compensation an amount to cover— (A) reasonable attorneys’ fees, and (B) other costs, incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis" } ]

[ { "docid": "16852112", "title": "", "text": "At this hearing, Sevier presented evidence, including medical records and expert testimony, to the special master. The government did not participate in the hearing, but did submit evidence to the special master including a medical review, signed by three doctors employed by the Department of Health and Human Services, which recommended denial of compensation based on a lack of evidence in the medical records showing that the MMR vaccine caused Amber’s hearing loss. By a decision dated June 22, 1990, the special master deter mined that petitioner was not entitled to compensation for Amber’s hearing loss under the Vaccine Program because she was not able to prove by a preponderance of the evidence that Amber’s hearing loss was caused by the MMR vaccine. Pursuant to 42 U.S.C. § 300aa-12(f), Sev-ier filed a Motion for Review of the special master’s decision on July 20, 1990. In its October 15, 1990 decision, the Claims Court determined that neither the special master’s fact findings nor his legal conclusion that petitioner had not proven she was entitled to compensation were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 42 U.S.C. § 300aa-12(e)(2)(B), and therefore sustained the special master’s decision. Sevier appeals as provided in § 300aa-12(f). We have jurisdiction over Sevier’s appeal pursuant to 28 U.S.C. § 1295(a)(3) (1988). DISCUSSION I We consider at the outset an issue which, though not raised by the parties, goes to our jurisdiction to decide this appeal and thus must be considered sua sponte: whether the 1989 amendments to the Vaccine Act render our review merely advisory and thus impermissible under article III of the Constitution. As originally enacted, the Vaccine Act required an unsuccessful petitioner, within 90 days of the Claims Court’s final decision, to file “an election in writing to accept the judgment or to file a civil action for damages for such injury or death.” 42 U.S.C. § 300aa-21(a)(2) (1988). In Brown v. Secretary, Dep’t of Health and Human Servs., 920 F.2d 918 (Fed.Cir.1990), we noted that because the petitioner in that case had, prior to appeal, already elected to" }, { "docid": "10309398", "title": "", "text": "ultimate issues in the case, including whether compensation is appropriate and if it is, its quantum. See Widdoss v. Secretary of Health and Human Services, 989 F.2d 1170, 1175 (Fed.Cir.1993) (“Furthermore, both section 300aa-12(d)(3)(A) and 300aa-12(e)(1) evidence that the proceedings on a petition conclude with a special master’s final act of ‘issu[ing] a decision on the petition,’ at which time the clock measuring the time for filing a motion to review the special master’s decision begins to run.”). Unlike 28 U.S.C. § 1292(c)(1), the Vaccine Act does not expressly permit an appeal of any specified orders a special master might issue prior to adjudicating a vaccine case fully. Further, section 12(e)(3) of the Vaccine Act states that, in the absence of a motion for review, “the clerk of the United States Court of Federal Claims shall immediately enter judgment in accordance with the special master’s decision.” 42 U.S.C. § 300aa-12(e)(3). However, there could be no entry of judgment in the instant case because there are alternate claims of a Table measles infection and autism pending, and the special master has not yet determined whether petitioners are entitled to compensation or, if so, in what amount. Indeed, the special master expressly recognized that this case is not yet resolved, stating that “[wjhen we reach the end of this case,” there “will be serious doubt” whether Dr. Geier should be compensated for certain fees. In Spratling v. Secretary of Health and Human Services, 37 Fed.Cl. 202, 203 (1997), this Court held that the Court of Federal Claims may review only final decisions of special masters and dismissed for lack of jurisdiction a petition to review an interim decision where the record before the special master remained open and the ultimate issue of compensation had not been resolved. In Spratling, petitioner sought review of a special master’s order finding that there was no credible evidence that petitioner had received an oral polio vaccine and authorizing petitioner to submit additional evidence from expert witnesses. The Spratling court characterized that order as an interim decision reasoning: In this case, if there was no motion for" }, { "docid": "7523563", "title": "", "text": "special master’s decision imposed an improper standard of causation and should be reversed. See generally, Petitioner’s Motion for Review (Pet’r’s Mot.). Respondent argues that the chief special master applied the correct standard of causation and properly exercised his role as “gatekeeper” in rejecting the causation theory of petitioner’s expert witness. See generally Response to Petitioner’s Motion for Review (Resp.). For the reasons set forth below, the court GRANTS petitioner’s motion for review, REVERSES and VACATES the chief special master’s decision and REMANDS the case for an award of compensation to petitioner. I. Standard of Review This court reviews the decisions of the special master under the following standard: [T]he United States Court of Federal Claims shall have jurisdiction to ... review ... the record ... and may thereafter ... set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law---- 42 U.S.C. § 300aa-12(e)(2)(B); see also Rules of the Court of Federal Claims, App. B, Rule 27(b) (“The [court] ... may ... [s]et aside any finding of fact or conclusion of law found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and issue [its] own decision----”); Saunders v. Sec’y of Health & Human Servs., 25 F.3d 1031, 1033 (Fed.Cir.1994). II. Background A. Standard of Proof for Causation-in-Fact of an Off-Table Vaccine Injury The Act requires petitioners seeking compensation for vaccine-related injuries to prove causation in one of two ways. An injury shown to fall under the Vaccine Injury Table, see 42 U.S.C. § 300aa-14(a)-a so-called Table injury-is afforded a presumption of causation by operation of law, see § 300aa-11(c)(1). Any injury not listed in the Vaccine Injury Table (an off-Table or non-Table injury) must be proven by causation in fact, § 300aa-ll(c)(l)(C)(ii)(I). Petitioners’ theories of causation must be substantiated “by medical records or by medical opinion.” § 300aa-13(a)(l). The Act further provides that [compensation shall be awarded under the Program to a petitioner" }, { "docid": "14925972", "title": "", "text": "for the claim for which the petition was brought. 42 U.S.C. § 300aa-15(e)(1). Thus, the Vaccine Act uses the term compensation to refer both to compensatory damages (such as payment for injury) and attorneys’ fees and costs. See Saunders v. Sec’y of HHS, 25 F.3d 1031, 1034-35 (Fed.Cir.1994) (noting the dual use of the term “compensation” in the Vaccine Act and determining that 42 U.S.C. § 300aa-15(f) prohibits the payment of compensatory damages when the petitioner declines to accept the judgment, but it allows the payment of attorneys’ fees). Consistent with this interpretation, this court and the Court of Federal Claims have recognized their jurisdiction to review a decision on fees, independent from a decision on the merits, where the decision on fees issued along with or after a decision on the merits. See, e.g., Avera, 515 F.3d 1343; Rodriguez v. Sec’y of HHS, 91 Fed.Cl. 453 (2010); Doe v. Sec’y of HHS, 89 Fed.Cl. 661 (2009). The sole question on appeal is whether the Court of Federal Claims has jurisdiction to review an interim fee decision prior to the decision on the merits of the underlying claim. We conclude that it does. The government asserts that we previously interpreted § 300aa-12(e) to “apply only to ‘final’ decisions of the special master that conclude the proceeding,” citing Widdoss, 989 F.2d at 1175. Gov’t Br. at 4, 12. On the contrary, we have never interpreted § 300aa-12(e)(3) to require a final decision concluding the proceedings or resolving the ultimate issue in the case. In Widdoss, we concluded that the 30-day time period in which to file for review in 42 U.S.C. § 300aa-12(e) was jurisdictional in nature. 989 F.2d at 1175, 1177. We further concluded that the clock began to run on the date that the special master issued its decision, rather than on the date that a 14-day temporary suspension of the proceeding ended. Id. We did not restrict jurisdiction to decisions resolving the ultimate issues of the case. The Special Master’s grant or denial of interim attorneys’ fees is a decision on compensation and as such it is reviewable" }, { "docid": "14977633", "title": "", "text": "fee shifting provision of the Vaccine Act, 42 U.S.C. § 300aa-15(e) (1988 & Supp. V 1993), which the Martins say is an independent grant of jurisdiction for the Court of Federal Claims to award fees in vaccine eases. That provision mandates the award of attorneys’ fees and costs to successful petitioners, and allows the special master or court to make a discretionary award of fees-and costs to unsuccessful petitioners under certain conditions. 42 U.S.C. § 300aa-15(e)(l). But the special master’s (or the court’s) discretion is not unfettered; there must first be a judgment “on such a petition” — that is, “on a petition filed under section 300aa-ll.” Id. Section 300aa-15 says nothing about jurisdiction. Contrary to the Martins’ suggestion to this court, section 300aa-15(e)(l) simply authorizes fee awards in cases already within the jurisdiction of the Court of Federal Claims. Cf. Johns-Manville Corp. v. United States, 893 F.2d 324, 327-28 (Fed.Cir.1989) (reversing award of costs where court had no subject matter jurisdiction). Where it does address jurisdiction, the Vaccine Act gives the Court of Federal Claims (and its special masters) jurisdiction “over proceedings to determine if a petitioner under section 300aa-ll of this title is entitled to compensation under the [Vaccine Injury Compensation] Program and the amount of such compensation.” 42 U.S.C. § 300aa-12(a) (Supp. V 1993). Section 300aa-ll, in turn, sets out the rules governing petitions for compensation- Subsection 11(a) lists several categories of persons who “may not file a petition” under the Act. See 42 U.S.C. § 300aa-ll(a)(5) (person with pending civil action for damages), § 300aa-11(a)(6) (person who files civil action for damages after effective date), and § 300aa-11(a)(7) (person awarded damages in a civil action); see also Flowers v. Secretary of Health and Human Servs., 49 F.3d 1668, 1562 (Fed.Cir.1995) (holding petition barred under section 300aa-11(a)(5)). At issue here is subsection 11(a)(6), which bars the filing of a petition for compensation for a vaccine-related injury if the petitioner has filed a civil action for damages for that injury after November 15, 1988. The Martins contend that section 300aa-11(a)(6) goes to the merits of their compensation claim," }, { "docid": "22248376", "title": "", "text": "CLEVENGER, Circuit Judge. The Secretary of the Department of Health and Human Services appeals from both the November 21, 1991 order of the United States Claims Court vacating the judgment entered in accordance with the special master’s decision, and the Claims Court’s February 6, 1992 judgment, Widdoss v. Secretary, Dep’t of Health & Human Servs., 25 Cl.Ct. 251 (1992) (Gibson, J.), reversing the special master’s decision and compensating Dawn R. Widdoss (Wid-doss) under the National Childhood Vaccine Injury Act for the death of her daughter, Crystal Renee Miller, less than 24 hours after being vaccinated with diphtheria-pertussis-tetanus (DPT). Because Widdoss’ motion to review the special master’s deci sion was untimely, the Claims Court lacked jurisdiction to entertain and rule upon the merits of that motion. Consequently, we vacate the Claims Court's order and judgment and remand with instructions to enter judgment in accordance with the special master’s decision. I This appeal raises three issues: (i) whether a special master’s decision issued, during a period of suspension under 42 U.S.C. § 300aa-12(d)(3)(C) is “issued” for the purpose of triggering the 30-day period in which to file a motion in the United States Claims Court to review the special master’s decision under 42 U.S.C. §■ 300aa-12(e)(1); (ii) whether the 30-day period under section 300aa-12(e)(l) is jurisdictional; and (iii) whether the Claims Court has the authority to waive compliance with the 30-day period through use of its rules of procedure. Statutory Framework The National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660 (Title III), 1986 U.S.C.C.A.N. (100 Stat.) 3755 (codified as amended at 42 U.S.C. §§ 300aa-l to 300aa-34 (1988 & Supp.1990) & at 42 U.S.C.A. §§ 300aa-l to 300aa-34 (West 1991 & Supp.1992)) (Vaccine Act), provides that compensation is available on petition to the Claims Court to a claimant who demonstrates by preponderant evidence that, inter alia, the vaccinated child suffered one of four statutorily-defined “table” injuries, or a complication or “seque-la” thereof. 42 U.S.C. §§ 300aa-13(a)(l), 300aa-14(a), (b) (1988 & Supp.1990). The legislative history accompanying the original statute evidences a concern with rapid resolution of petitions: The entire proceeding —" }, { "docid": "9423290", "title": "", "text": "decisions of the special masters. The Rules of the United States Court of Federal Claims, Appendix J, (“Vaccine Rules”) further support the proposition that the court’s jurisdiction is limited to reviewing final decisions of the special masters. Vaccine Rule 3 discusses the role of the special master. Vaccine Rule 3(a) states, “All proceedings prior to the issuance of the special master’s decision are to be conducted exclusively by the special master.” Vaccine Rule 10(a) explains, “The special master shall issue a final decision determining whether or not an award of compensation shall be made, and, if so, the amount thereof.” See 42 U.S.C. § 300aa-12(d)(3)(A). The special master conducts all proceedings prior to issuance of his or her final decision. The special master’s decision is to “be issued as expeditiously as practicable----” 42 U.S.C. § 300aa-12(d)(3)(A)(ii). This court would unduly interfere with the special master’s duties if it reviewed interim decisions. Reviewing interim decisions would make vaccine proceedings subject to time-consuming interruptions and piecemeal appellate review. Such a result is contrary to law and to judicial economy. Accordingly, this court may review only final decisions of the special masters. Moreover, the Act does not provide for interlocutory appeals in vaccine proceedings. This court’s jurisdiction is limited to its legislative mandate. See Livingston v. Derwinski, 959 F.2d 224, 225 (Fed.Cir.1992) (holding that federal court jurisdiction is limited to statutory grant). As discussed above, 42 U.S.C. § 300aa-12(e) provides jurisdiction for reviewing final decisions of the special masters. This court does not have jurisdic- tíon because the Chief Special Master has not issued a final decision. CONCLUSION Because the Chief Special Master has not rendered a final decision in this proceeding, the court does not have jurisdiction to review petitioner’s motion. Petitioner’s motion is DISMISSED without prejudice. No costs." }, { "docid": "14977634", "title": "", "text": "Claims (and its special masters) jurisdiction “over proceedings to determine if a petitioner under section 300aa-ll of this title is entitled to compensation under the [Vaccine Injury Compensation] Program and the amount of such compensation.” 42 U.S.C. § 300aa-12(a) (Supp. V 1993). Section 300aa-ll, in turn, sets out the rules governing petitions for compensation- Subsection 11(a) lists several categories of persons who “may not file a petition” under the Act. See 42 U.S.C. § 300aa-ll(a)(5) (person with pending civil action for damages), § 300aa-11(a)(6) (person who files civil action for damages after effective date), and § 300aa-11(a)(7) (person awarded damages in a civil action); see also Flowers v. Secretary of Health and Human Servs., 49 F.3d 1668, 1562 (Fed.Cir.1995) (holding petition barred under section 300aa-11(a)(5)). At issue here is subsection 11(a)(6), which bars the filing of a petition for compensation for a vaccine-related injury if the petitioner has filed a civil action for damages for that injury after November 15, 1988. The Martins contend that section 300aa-11(a)(6) goes to the merits of their compensation claim, not to the court’s jurisdiction to entertain the petition in the first instance. They point to the special master’s decision awarding fees and costs, where the special master concluded there was jurisdiction on two grounds: first, that nothing indicated that section 300aa-ll(a)(6) was any different from any other provision relating to the merits of a compensation claim; and second, that the Martins had raised a nonfrivolous allegation that they were entitled to compensation, the resolution of which required that the special master first take jurisdiction over their petition for compensation. Here, though, the statute expressly states that a person who meets its terms “may not file” a petition for vaccine compensation. 42 U.S.C. § 300aa-ll(a)(6). This language distinguishes this subsection’s requirements (as well as those of .the parallel provisions of section 300aa-ll(a)(5) and section 300aa-11(a)(7)) from other elements of a claim for compensation under the Vaccine Act. Indeed, section 300aa-13, entitled “Determination of eligibility and compensation,” requires that “[cjompensation shall be awarded under the Program to a petitioner if the special master or court finds" }, { "docid": "14925969", "title": "", "text": "fee awards would impede the goal of efficient resolution of claims. Finally, it asserts that Vaccine Rule 13 cannot create jurisdiction where none otherwise exists. In Avera, we held that the Vaccine Act permits the award of interim fees and costs, rejecting the government’s argument that a fee award is only permissible after judgment under § 300aa-15. Avera, 515 F.3d at 1350-51. As this court explained, there is even more reason to award interim fees in vaccine cases be cause there is no prevailing party requirement. Id. at 1352. “[T]he Vaccine Act merely requires parties who do not prevail to show that their claim was brought ‘in good faith’ and ‘with a reasonable basis.’ ” Id. (quoting 42 U.S.C. § 300aa-15(e)(l)). We further explained: A special master can often determine at an early stage of the proceedings whether a claim was brought in good faith and with a reasonable basis. Moreover, as we noted in Saunders, one of the underlying purposes of the Vaccine Act was to ensure that vaccine injury claimants have readily available a competent bar to prosecute their claims. 25 F.3d at 1035. Denying interim fee awards would clearly make it more difficult for claimants to secure competent counsel because delaying fee payments decreases the effective value of awards.... Interim fees are particularly appropriate in cases where proceedings are protracted and costly experts must be retained. Id. at 1352. Where the claimant establishes that the cost of litigation has imposed an undue hardship and that there exists a good faith basis for the claim, it is proper for the special master to award interim attorneys’ fees. For purposes of jurisdiction under 42 U.S.C. § 300aa-12, a decision on attorneys’ fees and costs is a decision on compensation. Subsection 12(d)(3)(A) provides the Court of Federal Claims with jurisdiction to review decisions under the Vaccine Act. 42 U.S.C. § 300aa-12(d)(3)(A). Specifically, this subsection provides that “[a] special master to whom a petition has been assigned shall issue a decision on such petition with respect to whether compensation is to be provided under the Program and the amount of such" }, { "docid": "14977639", "title": "", "text": "action and the Vaccine Act petition respectively, but by the terms of the statute that distinction is irrelevant. The Act asks whether they sought compensation for the same injury; it asks nothing about what vaccine caused that injury. The Martins were barred from filing a petition for compensation under the Vaccine Act. Because the special master had no jurisdiction over the petition, there was no jurisdiction over the request for attorneys’ fees and costs. Conclusion Accordingly, the judgment of the United States Court of Federal Claims is affirmed. AFFIRMED. . If a person brings a civil action after November 15, 1988 for damages for a vaccine-related injury or death associated with the administration of a vaccine before November 15, 1988, such person may not file a petition under subsection (b) of this section for such injury or death. 42 U.S.C. § 300aa-l 1(a)(6) (Supp. V 1993). . Because the determination whether there is subject matter jurisdiction is one of law, not fact, the trial judge was free to revisit the matter despite the special master's decision that there was jurisdiction. See 42 U.S.C. § 300aa-12(e)(2)(B) (Supp. V 1993); Munn v. Secretary of Health & Human Servs., 970 F.2d 863, 869, 870 n. 10 (Fed.Cir.1992) (legal questions reviewed under \"not in accordance with law” standard). Accordingly, there is no merit to the Martins' suggestion that the special master's decision bound the Court of Federal Claims as law of the case. . The attorneys' fees provision reads: In awarding compensation on a petition filed under section 300aa-l 1 of this title the special master or court shall also award as part of such compensation an amount to cover— (A) reasonable attorneys’ fees, and (B) any other costs, incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner's reasonable attorneys' fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought" }, { "docid": "17684615", "title": "", "text": "BRYSON, Circuit Judge. In this Vaccine Act case, the petitioners sought review of the decision of a special master denying compensation. Their petition for review, however, was not filed within the 30-day period allotted under the statute. For that reason, the Court of Federal Claims held the motion time-barred and refused to entertain it. We affirm. I In 1991, the petitioners filed a petition for compensation under the National Childhood Vaccine Injury Act (the Vaccine Act), 42 U.S.C. §§ 300aa-l to 300aa-34. The case was assigned to a special master, who held a hearing and issued a decision on July 14, 1995, denying compensation. The special master concluded that the petitioners had failed to prove that their daughter had experienced a qualifying injury that led to her death. The Vaccine Act permits a petitioner to seek review of a special master’s decision by filing a motion for review in the Court of Federal Claims. To obtain review, the petitioner must file a motion in the Court of Federal Claims within 30 days of the issuance of the special master’s decision. 42 U.S.C. § 300aa-12(e)(l). The petitioners in this ease did not file their motion for review in the Court of Federal Claims until August 23, 1995, which was 40 days after the special master’s decision was filed. Holding that the motion was not filed within 30 days of the issuance of the special master’s decision and that the 30-day period in Section 12(e)(1) of the Vaccine Act is jurisdictional, the Court of Federal Claims directed that the motion be returned unfiled. The petitioners then prosecuted this appeal, seeking to have their case reinstated and returned to the Court of Federal Claims for further proceedings there. II The language of the Vaccine Act and a prior decision of this court foreclose the petitioners’ contention that their motion for review was timely. Section 12(e)(1) of the Vaccine Act, 42 U.S.C. § 300aa-12(e)(l), provides as follows, in pertinent part: Upon issuance of the special master’s decision, the parties shall have 30 days to file with the clerk of the United States Court of" }, { "docid": "10309397", "title": "", "text": "had been well received in other vaccine cases in this tribunal. Petitioners ask the Court to reinstate their claim for Table encephalopathy and the portions of Dr. Geier’s affidavits which were stricken from the record. DISCUSSION The October 9 Order Was Not a Final Decision The Vaccine Act authorizes the Court of Federal Claims to review “decisions” of special masters. 42 U.S.C. § 300aa-12(e)(1). “Decisions” are described as follows in section 12(d)(3) of the Vaccine Act: A special master to whom a petition has been assigned shall issue a decision on such petition with respect to whether compensation is to be provided under the Program and the amount of such compensation. The decision of the special master shall— (I) include findings of fact and conclusions of law, and (ii) be issued as expeditiously as practicable ... The decision of the special master may be reviewed by the United States Court of Federal Claims in accordance with subsection (e) of this section. Thus, the statute contemplates that a “decision” by a special master will resolve the ultimate issues in the case, including whether compensation is appropriate and if it is, its quantum. See Widdoss v. Secretary of Health and Human Services, 989 F.2d 1170, 1175 (Fed.Cir.1993) (“Furthermore, both section 300aa-12(d)(3)(A) and 300aa-12(e)(1) evidence that the proceedings on a petition conclude with a special master’s final act of ‘issu[ing] a decision on the petition,’ at which time the clock measuring the time for filing a motion to review the special master’s decision begins to run.”). Unlike 28 U.S.C. § 1292(c)(1), the Vaccine Act does not expressly permit an appeal of any specified orders a special master might issue prior to adjudicating a vaccine case fully. Further, section 12(e)(3) of the Vaccine Act states that, in the absence of a motion for review, “the clerk of the United States Court of Federal Claims shall immediately enter judgment in accordance with the special master’s decision.” 42 U.S.C. § 300aa-12(e)(3). However, there could be no entry of judgment in the instant case because there are alternate claims of a Table measles infection and autism pending," }, { "docid": "9423287", "title": "", "text": "ORDER ROBINSON, Judge. On December 12, 1996, petitioner filed a motion entitled, “Motion for Review of Decision and Order of Special Master.” Respondent filed a response on January 10, 1997. Based upon the court’s research and the parties’ filings, this case presents a matter of first impression. This court has not previously addressed whether it may review interim decisions of the special masters in vaccine proceedings. For the reasons that follow, the court determines that it lacks jurisdiction to consider petitioner’s motion. On September 26, 1990, petitioner filed for compensation under the National Childhood Vaccine Injury Act of 1986 (“the Act”), 42 U.S.C. § 300aa-l et seq. (1994). Petitioner alleged that she received a polio vaccine in August or September 1958 and suffered paralysis as a result. On May 14, 1995, a hearing was held for the limited purpose of considering whether there was sufficient evidence to establish that petitioner received an oral polio vaccine (“OPV’) or an inactivated polio vaccine (“IPV’) in August or September 1958. On November 15,1996, the Chief Special Master issued a Decision and Order (“Order”), finding that there was no credible evidence that petitioner received an OPV due to the unavailability of that type of vaccine at that time. Order at 5-6. The Chief Special Master further found that the lay evidence was not sufficiently credible to overcome the medical record evidence indicating that no vaccine had been received at the time alleged. Order at 6. The Chief Special Master gave petitioner the opportunity to submit additional evidence from expert witnesses. According to the Chief Special Master’s Order, petitioner has until January 15, 1997 to submit additional evidence. Order at 6. The Order did not direct the Clerk to enter judgment on the petition in the absence of a Motion for Review pursuant to 42 U.S.C. § 300aa-12(e). On December 12, 1996, petitioner filed a motion seeking review of the Chief Special Master’s decision. This court lacks jurisdiction to consider petitioner’s motion. 42 U.S.C. § 300aa-12(e)(1) explains the court’s jurisdiction to review a special master’s decision. Section 12(e)(1) states, “Upon issuance of the special master’s" }, { "docid": "22248377", "title": "", "text": "purpose of triggering the 30-day period in which to file a motion in the United States Claims Court to review the special master’s decision under 42 U.S.C. §■ 300aa-12(e)(1); (ii) whether the 30-day period under section 300aa-12(e)(l) is jurisdictional; and (iii) whether the Claims Court has the authority to waive compliance with the 30-day period through use of its rules of procedure. Statutory Framework The National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660 (Title III), 1986 U.S.C.C.A.N. (100 Stat.) 3755 (codified as amended at 42 U.S.C. §§ 300aa-l to 300aa-34 (1988 & Supp.1990) & at 42 U.S.C.A. §§ 300aa-l to 300aa-34 (West 1991 & Supp.1992)) (Vaccine Act), provides that compensation is available on petition to the Claims Court to a claimant who demonstrates by preponderant evidence that, inter alia, the vaccinated child suffered one of four statutorily-defined “table” injuries, or a complication or “seque-la” thereof. 42 U.S.C. §§ 300aa-13(a)(l), 300aa-14(a), (b) (1988 & Supp.1990). The legislative history accompanying the original statute evidences a concern with rapid resolution of petitions: The entire proceeding — from date of filing through Special Master proceedings and court review — is to take place as expeditiously as possible.... [Mjuch of the equity in limiting compensation and limiting other remedies arises from the speed and reliability with which the petitioner can expect judgment; without such quick and certain conclusion of proceedings, the compensation system would work an injustice upon the petitioner. H.R.Rep. No. 908, 99th Cong., 2d Sess. 17 (1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6344, 6358 (emphasis added). Under 42 U.S.C. § 300aa-12(d)(3)(A)(ii), originally enacted as subsection 2112(d) of the Vaccine Act, § 311(a), 1986 U.S.C.C.A.N. (100 Stat.) at 3762, the special master assigned to hear a petition has a limited period of 240 days after the petition’s filing date in which to hear the merits and issue a decision. If the special master fails to issue a decision within the 240-day period, the special master shall notify the petitioner of her options either to have the petition remain before the special master or to withdraw the petition, upon submitting written notice to" }, { "docid": "7393125", "title": "", "text": "offered no opinion as to whether the special masters could exercise Rule 60(b) authority with this Court’s authorization, it suggested this was the case, in noting that under the rules then in existence, our Court “apparently chose to reserve the power to grant Rule 60-type relief for itself, withholding such power from the special masters.” Id. at 1026. The Circuit did confirm that this Court may entertain a Rule 60(b) motion in a vaccine case. More recently, an opinion of this Court has elaborated on the nature of our review jurisdiction under the Vaccine Act. In Weiss v. Secretary, 59 Fed.Cl. 624 (2004), the petitioner sought review of a special master’s decision not to permit expert testimony. The Court dismissed the motion for want of jurisdiction, holding that our Vaccine Act review jurisdiction extended only to the special masters’ decisions as defined in 42 U.S.C. § 300aa-12(d)(3). Id. at 626-27. The Weiss opinion relied upon the reasoning of Spra-tling v. Secretary, 37 Fed. Cl. 202 (1997), in which the Court dismissed an appeal of a special master’s interim decision because the ultimate question of compensation — a condition precedent to the Court’s review jurisdiction — had not been decided at the time of the appeal. Id. at 203; see Weiss, 59 Fed.Cl. at 626-27. Both Weiss and Sprailing relied upon the Vaccine Rules which require that all pre-compensation proceedings be conducted before the special master. See Spratling, 37 Fed.Cl. at 203; Weiss, 59 Fed.Cl. at 627. Thus, the principle is well-established that a pre-compensation decision properly before the special master may not be appealed to this Court. B. The Lemire Decision Most recently, the issue presented here— whether a special master’s decision granting VR 36 relief may immediately be reviewed— was considered in Lemire. The facts of Le-mire are similar to those confronted here. The Lemire special master had dismissed the petition as barred by the statute of limitations. The petitioners did not appeal to our Court. Less than a year later the petitioners moved for VR 36 relief, citing the Court’s decision in Seines to support their position that" }, { "docid": "11553541", "title": "", "text": "LOURIE, Circuit Judge. James M. and Joann Patton, legal guardians for their son, Thomas Edward Patton, appeal from the June 7,1993 judgment of the United States Court of Federal Claims reinstating its earlier judgment of September 29, 1992 entered in accordance with a special master’s decision awarding compensation for vaccine-related injuries under the National Vaccine Injury Compensation Program, but omitting an award for pain and suffering. Patton v. Secretary of Dep’t of Health & Human Servs., 28 Fed.Cl. 532 (1993) (opinion). The Pattons also appeal from a separate judgment denying their motion under Rule 60 of the Rules of the Court of Federal Claims to amend the September 29, 1992 judgment. Patton v. Secretary of the Dep’t of Health and Human Servs., No. 90-1094 V (Ct.Fed.Cl. Aug. 5, 1993). We affirm-in-part, vaeate-in-part, and remand. BACKGROUND On September 20,1990, a petition was filed by the Pattons under the National Childhood Vaccine Injury Act of 1986, Pub.L. No. 99-660, § 311(a), 100 Stat. 3758 (codified as amended at 42 U.S.C. §§ 300aa-l to 300aa-34 (1988 & Supp. II 1990)) (“the Act” or “Vaccine Act”) seeking compensation for injuries allegedly sustained by their son after he received a diphtheria-pertussis-tetanus vaccination on December 24,1959. The petition also contained claims requesting compensation for loss of earnings and pain and suffering pursuant to 42 U.S.C. § 300aa-15(a)(3), (4). The case was assigned to a special master who conducted proceedings to determine whether the Pattons were entitled to an award, and if so, the amount of such award. 42 U.S.C. § 300aa-12(d); Vaccine Rule 3. On April 20, 1992, the special master issued her decision, finding in favor of the Pattons on the issue of entitlement and determining the amount of compensation due. Pursuant to Vaccine Rule 10(b), the special master deferred ruling on the claims for pain and suffering and loss of earnings until she issued her decision regarding attorneys’ fees and other costs. Both parties declined to seek review of the special master’s decision and the Court of Federal Claims entered judgment in accordance with that decision on May 22, 1992. See 42 U.S.C. §" }, { "docid": "7523562", "title": "", "text": "OPINION AND ORDER HEWITT, Judge. Petitioner Ryan Kelley seeks review in this court of the chief special master’s dismissal of his Amended Petition for Vaccine Compensation (Petition or Pet.), filed under the National Vaccine Injury Compensation Program (Vaccine Act or Act), 42 U.S.C. §§ 300aa~l to -34 (2000). On March 22, 1999, Mr. Kelley received a tetanus toxoid (TT) vaccination alleged to have caused him neurological injury first diagnosed as Guillain-Barré Syndrome (GBS), Pet. at 1, but later categorized as Chrome Inflammatory Demyelinating Polyneuropathy (CIDP), id. at 6, ¶ 10. Petitioner filed for compensation on March 21, 2002 and amended his petition on November 5, 2002. See Kelley v. Sec’y of Health & Human Servs., No. 02-223V, 2005 WL 1125671, at *1 (Fed.Cl.Spec.Mstr. March 17, 2005). In a decision published March 17, 2005, the chief special master dismissed the Petition for failure to prove by preponderant evidence that the vaccination had in-fact caused petitioner’s injury. Id. at *15. Petitioner timely filed a motion for review under section 300aa-12(e) of the Act, claiming that the chief special master’s decision imposed an improper standard of causation and should be reversed. See generally, Petitioner’s Motion for Review (Pet’r’s Mot.). Respondent argues that the chief special master applied the correct standard of causation and properly exercised his role as “gatekeeper” in rejecting the causation theory of petitioner’s expert witness. See generally Response to Petitioner’s Motion for Review (Resp.). For the reasons set forth below, the court GRANTS petitioner’s motion for review, REVERSES and VACATES the chief special master’s decision and REMANDS the case for an award of compensation to petitioner. I. Standard of Review This court reviews the decisions of the special master under the following standard: [T]he United States Court of Federal Claims shall have jurisdiction to ... review ... the record ... and may thereafter ... set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law---- 42 U.S.C. § 300aa-12(e)(2)(B); see" }, { "docid": "19066008", "title": "", "text": "Fees Decision was based, in part, on the special master’s determination that Mr. Moxley was entitled to be compensated for his services in 2008 at an hourly rate of $220. Id. at *12. Masias timely filed a motion for review of the special master’s decision with the United States Court of Federal Claims. On December 10, 2009, the court denied the motion for review and affirmed the special master’s decision. Masias v. Sec’y of Health & Human Servs., No. 99-697V, slip op. at 11 (Fed.Cl. Dec. 10, 2009). Shortly thereafter, the court entered judgment in favor of Masias in the amount of $33,908.57, the amount for fees and costs that the special master found to be due in the Fees Decision. Masias now appeals the decision of the Court of Federal Claims denying his motion for review. We affirm. BACKGROUND I. The Vaccine Act authorizes special masters to issue decisions with respect to “whether compensation is to be provided under the [Vaccine] Program and the amount of such compensation.” 42 U.S.C. § 300aa-12(d)(3)(A). When, as here, “compensation” is awarded under the Act for a vaccine-related injury or death, the petitioner is entitled to receive “reasonable attorneys’ fees” and other costs. 42 U.S.C. § 300aa-15(e)(l). In addition, unlike most fee-shifting statutes, even if the petitioner is not awarded “compensation” under the Act, reasonable attorneys’ fees and other costs may be awarded if the special master or the court determines that the petition was brought “in good faith” and that there was a “reasonable basis” for the claim. See id. Because Masias was awarded compensation for his vaccine injury, there is no dispute that the special master was required to award attorneys’ fees and costs in this case. II. To determine the attorneys’ fees due to Masías, the special master began with the lodestar approach. We have endorsed the use of the lodestar approach to determine what constitutes “reasonable attorneys’ fees” under the Vaccine Act. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1347-48 (Fed.Cir.2008). Under this approach, the court first makes an initial estimate of a reasonable attorneys’" }, { "docid": "14977630", "title": "", "text": "under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-l to 300aa-34 (1988 & Supp. V 1993) (Vaccine Act). The Martins filed their petition under the Vaccine Act in the Court of Federal Claims on June 12,1990, alleging that Ryan’s paralysis was caused by oral polio vaccine. On October 31, 1990, the Secretary of the Department of Health and Human Services moved to dismiss on the basis of 42 U.S.C. § 300aa-ll(a)(6) (Supp. V 1993), because the Martins had previously filed a civil suit for damages resulting from the same injury. The special master denied the motion, and the proceedings continued. The Secretary eventually filed another motion to dismiss on June 8, 1993. The Martins moved to dismiss the petition, and the special master granted the motion with prejudice on October 8,1993. The Martins then filed a motion for attorneys’ fees and costs. After concluding that there was a reasonable basis for the claim, and that they had brought it in good faith, the special master granted the motion. He awarded fees of $22,837.50 and $4,474.24 in costs. Martin v. Secretary of Health & Human Servs., No. 90-515V, slip op. at 13, 1994 WL 390354 (Fed.Cl.Sp.Mstr. July 6, 1994) (decision granting attorneys’ fees). The government sought review of the special master’s fee award in the Court of Federal Claims, which vacated the award. The court concluded that the Martins’ claim was barred by section 300aa-ll(a)(6), holding that this subsection was a limitation on the jurisdiction of special masters to hear compensation claims under the Vaccine Act. And, the court concluded, because the special master had no jurisdiction over the Martins’ claim, he had no jurisdiction over their request for attorneys’ fees. Martin v. Secretary of Health & Human Servs., No. 90-515V, slip op. at 5 (Fed.Cl. Oct. 11, 1994). The Martins appeal. Discussion In this appeal we must decide whether the court’s power to award attorneys’ fees and costs under the Vaccine Act is contingent upon the petitioner’s avoidance of 42 U.S.C. § 300aa-ll(a)(6), which bars the filing of a Vaccine Act petition by persons who have filed a" }, { "docid": "14977631", "title": "", "text": "and $4,474.24 in costs. Martin v. Secretary of Health & Human Servs., No. 90-515V, slip op. at 13, 1994 WL 390354 (Fed.Cl.Sp.Mstr. July 6, 1994) (decision granting attorneys’ fees). The government sought review of the special master’s fee award in the Court of Federal Claims, which vacated the award. The court concluded that the Martins’ claim was barred by section 300aa-ll(a)(6), holding that this subsection was a limitation on the jurisdiction of special masters to hear compensation claims under the Vaccine Act. And, the court concluded, because the special master had no jurisdiction over the Martins’ claim, he had no jurisdiction over their request for attorneys’ fees. Martin v. Secretary of Health & Human Servs., No. 90-515V, slip op. at 5 (Fed.Cl. Oct. 11, 1994). The Martins appeal. Discussion In this appeal we must decide whether the court’s power to award attorneys’ fees and costs under the Vaccine Act is contingent upon the petitioner’s avoidance of 42 U.S.C. § 300aa-ll(a)(6), which bars the filing of a Vaccine Act petition by persons who have filed a civil action seeking damages for the same injury that is the subject of their Vaccine Act petition. The Martins also suggest that even if this subsection does limit the court’s jurisdiction, the Vaccine Act independently provides jurisdiction for-the award of attorneys’ fees and costs to persons whose petitions are otherwise barred. We review the trial court’s ruling on-these questions, which raise matters of statutory interpretation and jurisdiction, de novo. Weddel v. Secretary of Health and Human Servs., 23 F.3d 388, 391 (Fed.Cir.1994). The Court of Federal Claims is a creature of statute, and its power is limited to what Congress has expressly given it. Beck v. Secretary of Health & Human Servs., 924 F.2d 1029, 1036 (Fed.Cir.1991). In this ease, the Martins assert jurisdiction based on sections 300aa-12 and 300aa-15 of Title 42 of the United States Code. Because their claim against the United States implicates its sovereign immunity from suit, the alleged jurisdictional grant must be narrowly construed. * See Hart v. United States, 910 F.2d 815, 817 (Fed.Cir.1990). We turn first to the" } ]

[ { "docid": "130627", "title": "", "text": "need not detain us long. If Feichtinger is right, what, we wonder, does a waiver waive? Most sentencing appeals involve what are alleged to be incorrect applications of the guidelines. We have, in fact, upheld waivers even in situations in which the court has departed upward from the guidelines. United States v. Wenger, 58 F.3d 280 (7th Cir.), cert. denied, - U.S. -, 116 S.Ct. 349, 133 L.Ed.2d 245 (1995). In support of his position, Feichtinger relies on United States v. Schmidt, 47 F.3d 188 (7th Cir.1995), for the proposition that a waiver of a right to appeal is\" subject to exceptions. True, but in Schmidt, even though the government did not raise the waiver issue, we relied on a waiver of appeal to dismiss an appeal of a sentence alleged to involve an improper enhancement under the guidelines. We noted that the right to appeal is a statutory right, and like other rights-even constitutional rights-which a defendant may waive, it can be waived in a plea agreement. A waiver of appeal rights can only be upheld if it is voluntarily made. And it will not be enforced if a sentencing judge relied on impermissible facts\" (such as a defendant's race) or if the judge sentenced a defendant in excess of the statutory maximum sentence for the crime committed. But an improper application of the guidelines is not a reason to invalidate a knowing and voluntary waiver of appeal rights. A defendant who pleads guilty with an appeal waiver can, of course, inoculate himself against a bizarre interpretation of the guidelines by offering his plea under Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure. Feichtinger has not done that. Feichtinger's other argument is that the government breached the plea agreement, thus violating his due process rights and rendering the agreement invalid. His argument centers on the provision in the agreement that at sentencing the government would recommend a three-level reduction in his offense level for acceptance of responsibility. Feichtinger says the government failed to keep this part of the bargain. Let's look at what happened during the sentencing proceeding" } ]

[ { "docid": "14180769", "title": "", "text": "the government. Defendant was then charged with the instant offense. The presentence report (“PSR”) prepared for the district court following Defendant’s plea of guilty stated that the estimated retail price for the counterfeit software was $599.99 per copy and that Defendant was therefore “responsible for a loss of $322,194.63 for guideline calculation purposes and restitution.” (PSR at 10.) The PSR further stated that Microsoft had submitted a declaration of loss statement claiming that it was “owed restitution in the amount of $321,663.00.” (Id.) The PSR provided no facts supporting this figure beyond the earlier estimated retail price for the software. In a memorandum filed eight days before the sentencing hearing, Defendant ar gued that there was “a complete lack of information identifying the pecuniary harm suffered by Microsoft” and, therefore, that there was no basis for the district court to order restitution. (Doc. 19 at 13.) At the sentencing hearing, neither party mentioned this objection until after the district court had rendered its judgment. Defendant’s counsel then reminded the court of the objection and asked whether he could assume that it had been overruled. The court responded, “Yes, the Court missed that.” (Sent. Tr. at 37.) Without explanation, the court then overruled the objection. The court made no factual findings regarding the amount of actual loss suffered by Microsoft. Discussion As an initial matter, we must consider whether Defendant waived his right to appeal this issue. “[W]e generally enforce plea agreements and their concomitant waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir.2004) (en banc) (per curiam). However, because “ ‘a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court,’ ” not every issue can be waived by agreement. United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000) (quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992)). For instance, “a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum.” Id. In United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir.1995), the" }, { "docid": "16897728", "title": "", "text": "Cir.1999). Nevertheless, because a plea agreement is a contract and generally governed by ordinary contract law principles, waivers contained in the agreements are unenforceable in certain circumstances akin to those in which a contract would be unenforceable, such as when the government has materially breached the agreement, see United States v. Quintero, 618 F.3d 746, 750-52 (7th Cir.2010), or the dispute falls outside the scope of the waiver, Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir.2000). Though disputes over plea agreements are “usefully viewed through the lens of contract law,” we have recognized that the application of ordinary contract law principles to plea agreements, “must be tempered by recognition of limits that the Constitution places on the criminal process, limits that have no direct counterparts in the sphere of private contracting.” United States v. Bownes, 405 F.3d 634, 636 (7th Cir.2005). For example, “while a contracting party is bound by the mistakes of his lawyer, however egregious (his only remedy being a suit for malpractice), the Constitution entitles defendants entering plea agreements to effective assistance of counsel.” Id. at 637. We have therefore repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement. United States v. Jemison, 237 F.3d 911, 916 n. 8 (7th Cir.2001); United States v. Hodges, 259 F.3d 655, 659 n. 3 (7th Cir.2001); Bridgeman, 229 F.3d at 591. Despite our precedent indicating that a collateral review waiver does not prevent a habeas petitioner from being heard on claims that his plea agreement was the product of ineffective assistance of counsel, the government argues, and the district court concluded, that this avenue of relief from waiver is not applicable to Hurlow because he has not alleged that his counsel was ineffective in the negotiation of the waiver provision of his plea agreement, as opposed to the agreement as a whole. In support, the government relies upon Jones v. United States, in which we stated that collateral review “waivers are enforceable as a general rule; the right to mount a collateral attack" }, { "docid": "5010015", "title": "", "text": "differently. Allowing a defendant to waive the right to appeal his sentence also gives him an additional bargaining chip to use in negotiating a plea agreement with the Government. See Teeter, 257 F.3d at 22. For example, the prosecutor might be willing to dismiss a count in exchange for the defendant’s waiver of his right to appeal his sentence. Indeed, in certain circumstances an agreement may not be possible if the defendant may not waive his right to appeal. Allowing the defendant to waive this right therefore improves the defendant’s bargaining position and increases the probability he will reach a satisfactory plea agreement with the Government. B. When a Pre-sentence Waiver is not Enforceable By waiving the right to appeal his sentence, the defendant does not agree to accept any defect or error that may be thrust upon him by either an ineffective attorney or an errant sentencing court. Rather, the defendant waives his right to contest only a sentence within the statutory range and imposed under fair procedures; his waiver relieves neither his attorney nor the district court of their obligations to satisfy applicable constitutional requirements. Drawing upon the experience of sister circuits, therefore, we mention some circumstances that may lead a reviewing court not to enforce a pre-sentence waiver. See, e.g., United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004) (en banc) (per curiam); Teeter, 257 F.3d at 25 n. 9-n. 10; United States v. Brown, 232 F.3d 399, 403 (4th Cir.2000); United States v. Michelsen, 141 F.3d 867, 872 n. 3 (8th Cir.1998). Most obvious, a waiver should not be enforced insofar as the defendant makes a colorable claim he received ineffective assistance of counsel in agreeing to the waiver. See, e.g., Hahn, 359 F.3d at 1327; Teeter, 257 F.3d at 25 n. 9. If such a claim is upheld, it follows that, because the defendant’s attorney failed to ensure the defendant understood the consequences of his waiver, the waiver was not knowing, intelligent, and voluntary. If, however “a defendant’s complaints of his counsel’s in adequacy plainly lack merit, a court cannot allow itself to be" }, { "docid": "22186983", "title": "", "text": "827, 829-30 (8th Cir.1992); overruled in part on other grounds by United States v. Andis, 333 F.3d 886, 892 n. 6 (8th Cir.2003) (en banc), the absence of an explicit escape clause is compelling evidence that no escape is allowed. The government would have been unlikely to agree to an escape hatch. With more than 12,000 federal criminal appeals every year, hundreds or even thousands will be decided in the interval between the signing of a plea agreement and the exhaustion of the defendant’s appellate remedies, and some of those decisions are likely to be interpretable as unforeseen legal changes favorable to the defendant — so the escape hatch might be very large. Bownes argues that Booker is special because . it brought about a “sea change” in the law. The identical argument was rejected, rightly in our view, in the Bradley and Killgo cases that we cited in the preceding paragraph. It is true that Booker has had a tremendous impact because it has affected many thousands of sentences, but it is no more, and indeed less, of a “sea change” than numerous other legal innovations scattered across the volumes of the United States Reports and the Federal Reporter. And anyway a “sea change” exception to the rule that an unqualified appeal waiver is to be' enforced as written would be hopelessly vague. It is also unnecessary given the limitations on waiver of the right of appeal in a criminal case that are imposed by judicial interpretations of the due process clause. United States v. Schilling, 142 F.3d 388, 394-95 (7th Cir.1998); United States v. Ready, 82 F.3d 551, 556 (2d Cir.1996); United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986). As we noted in United States v. Josefik, 753 F.2d 585, 588 (7th Cir.1985), “there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.” Thus a sentence based on constitutionally impermissible criteria," }, { "docid": "22705875", "title": "", "text": "on an impermissible factor such as race, or where the agreement is otherwise unlawful. See United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000); United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994); see also United States v. Hernandez, 134 F.3d 1435, 1437-38 (10th Cir.1998) (holding that defendant “clearly waived his right to appeal the sentence imposed” because there was no suggestion that either plea agreement or waiver of statutory right to appeal was unknowing or involuntary); accord United States v. Bushert, 997 F.2d 1343, 1353 (11th Cir.1993) (holding that defendant’s waiver of the right to appeal was not knowing and voluntary because court’s Rule 11 colloquy was deficient for failing to clearly inform defendant that he was waiving his appeal rights); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992) (stating that a defendant does not waive his right to appellate review of a sentence based on race). In addition, “a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum[ ] or to deny review of a claim that the agreement was entered into with ineffective assistance of counsel.” Black, 201 F.3d at 1301 (citation omitted); accord United States v. Joiner, 183 F.3d 635, 645 (7th Cir.1999) (rejecting ineffective assistance claim on sentencing because appeal rights were “knowingly and intelligently waived”); United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (“[Dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant’s motion to withdraw the plea incorporates a claim that the plea agreement generally, and the defendant’s waiver of appeal specifically, were tainted by ineffective assistance of counsel.”); United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.1994) (determining that plea agreement waiver cannot bar direct appeal based on ineffective assistance claim concerning plea proceedings). By analogy, the right to bring a collateral attack under § 2255 is a statutory right and, like the right to direct appeal, appears to be waiva-ble unless it falls within these same exceptions. Defendant has not provided any argument to persuade us otherwise. Second, it" }, { "docid": "22725669", "title": "", "text": "States v. West, 392 F.3d 450, 460 (D.C.Cir.2004) (\"Having consented in such plain terms to sentencing under the Guidelines, West would have us believe that he nevertheless reserved a constitutional challenge to the Guidelines through an exceedingly subtle employment of ‘statutory maximum.’ We find such a reading of the agreement untenable.”); see also United States v. McKinney, 406 F.3d 744, 747, 2005 WL 887153, at *3 n. 5 (5th Cir. April 15, 2005) (following Rubbo and West). . See also Green, 405 F.3d 1180, 1189-92, 2005 WL 1060608, at **7-10; United States v. Cardenas, 405 F.3d 1046, 1048, 2005 WL 1027036, at *2 (9th Cir. May 4, 2005); United States v. Morgan, 406 F.3d 135, 136-38, 2005 WL 957186, at **1-2 (2d Cir. Apr.27, 2005); United States v. Bownes, 405 F.3d 634, 636-38 (7th Cir.2005). . We continued: \"For example, a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.\" 961 F.2d at 496. Nonetheless, this language appears to be dicta because we held that the sentence being appealed in that case \"is not such a sentence.” Id. . As noted, we analyze appeal waivers under a two-part analysis by which we consider the validity and the scope of the waiver. We note that some other circuits analyze appeal waivers under a three-part analysis. See, e.g., United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004); United States v. Andis, 333 F.3d 886, 891-92 (8th Cir.2003). These circuits consider the validity and scope of the waiver, and also whether enforcement of the waiver will result in a miscarriage of justice. Although we have not used the term miscarriage of justice in analyzing appeal waivers, the concept seems to be subsumed within our analysis of the scope of the waiver. . On the merits, we affirmed the defendants' sentences. Although a defendant certainly can waive the right to counsel at a sentencing proceeding, see generally Faretta v. California, 422 U.S. 806, 807, 95 S.Ct." }, { "docid": "22095207", "title": "", "text": "interests. Recently, the Supreme Court has held that, even as to evidentiary rulings, a defendant may be deemed incapable of waiving a right that has an overriding impact on public interests: [Tjhere may be some evidentiary provisions that are so fundamental to the relia bility of the fact-finding process that they may never be waived without irreparably discredit[ing] the federal courts. United States v. Mezzanatto, — U.S. —, —, 115 S.Ct. 797, 803, 130 L.Ed.2d 697 (1995) (internal quotation marks omitted) (upholding defendant’s waiver of the right to exclude from evidence his statements during plea negotiations). In support, the Court parenthetically quoted Judge Posner’s zoological example: No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept. Id. (quoting United States v. Josefik, 753 F.2d 585, 588 (7th Cir.), cert. denied, 471 U.S. 1055, 105 S.Ct. 2117, 85 L.Ed.2d 481 (1985)). Along these lines, the Court in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), concluded that a criminal defendant’s right to have a lawyer free of conflicts of interest is not a waivable right, in part because such a conflict “ ‘constitutes a breach of professional ethics and invites disrespect for the integrity of the court.’ ” Id. at 162, 108 S.Ct. at 1699 (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir.1978)); see also Tony & Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 302, 105 S.Ct. 1953, 1962, 85 L.Ed.2d 278 (1985) (employees may not waive Fair Labor Standards Act protections; otherwise, non-waiving employees might be subject to downward wage pressures, and employers might use their “superior bargaining power to coerce” employees into waiving these protections). As for the right to appeal, we have recognized that appellate review under the Guidelines, important as it is for individual defendants, also serves an important public interest in avoiding the sentencing disparities that were" }, { "docid": "22186985", "title": "", "text": "such as race, United States v. Hicks, 129 F.3d 376, 377 (7th Cir.1997); United States v. Johnson, 347 F.3d 412, 414-15 (2d Cir.2003); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992), or a sentence in excess of the statutory maximum sentence for the defendant’s crime, United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.1997); United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000), can be challenged on appeal even if the defendant executed a blanket waiver of his appeal rights. See also United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004) (en banc) (per curiam). A particularly striking example of the divergence between the legal principles that govern plea agreements and those that govern ordinary contracts is that while a contracting party is bound by the mistakes of his lawyer, however egregious (his only remedy being a suit for malpractice), the Constitution entitles defendants entering plea agreements to effective assistance of counsel. United States v. Hodges, 259 F.3d 655, 659 n. 3 (7th Cir.2001); United States v. Jemison, 237 F.3d 911, 916 n. 8 (7th Cir.2001); United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir.2001) (per curiam). We need not decide precisely how deep an inroad the cases elucidating such differences make into the contractual model of plea bargaining. None of them bears on the present case. Indeed, it is not even clear that defendants as a whole would benefit from a right to rescind a plea agreement on the basis of a “sea change” in law. Apart from the fact that the government would insist on a compensating concession, and apart from the further fact that rescission would relieve the government from whatever concessions it had made to obtain the agreement, United States v. Kelly, 337 F.3d 897, 901 (7th Cir.2003); United States v. Whitlow, 287 F.3d 638, 640-41 (7th Cir.2002); United States v. Cimino, 381 F.3d 124, 127-28 (2d Cir.2004); United States v. Ballis, 28 F.3d 1399, 1409-10 (5th Cir.1994); see generally Scheiber v. Dolby Laboratories, Inc., 293 F.3d 1014, 1022 (7th" }, { "docid": "14180770", "title": "", "text": "whether he could assume that it had been overruled. The court responded, “Yes, the Court missed that.” (Sent. Tr. at 37.) Without explanation, the court then overruled the objection. The court made no factual findings regarding the amount of actual loss suffered by Microsoft. Discussion As an initial matter, we must consider whether Defendant waived his right to appeal this issue. “[W]e generally enforce plea agreements and their concomitant waivers of appellate rights.” United States v. Hahn, 359 F.3d 1315, 1318 (10th Cir.2004) (en banc) (per curiam). However, because “ ‘a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court,’ ” not every issue can be waived by agreement. United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000) (quoting United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992)). For instance, “a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum.” Id. In United States v. Broughton-Jones, 71 F.3d 1143 (4th Cir.1995), the Fourth Circuit considered whether challenges to the legality of a restitution order can be waived by agreement. Citing to Marin, the court concluded that “[bjecause a restitution order imposed when it is not authorized by the [applicable restitution statute] is no less ‘illegal’ than a sentence of imprisonment that exceeds the statutory maximum, appeals challenging the legality of restitution order are similarly outside the scope of a defendant’s otherwise valid appeal waiver.” Id. at 1147. Therefore, the court held that the defendant’s valid waiver of her right to appeal did not bar her from contesting the district court’s restitution order on the ground that it exceeded the court’s statutory authority under 18 U.S.C. § 3663(a)(1). In a recent decision, the Fourth Circuit reiterated the Broughton-Jones rationale: Although we enforce appeal waivers that are knowing and voluntary, even valid appeal waivers [do] not bar appellate review of every sentence.... Just as a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided" }, { "docid": "22095206", "title": "", "text": "(5th Cir.1992); United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992); United States v. Navarro-Botello, 912 F.2d 318, 322 (9th Cir.1990), cert. denied, 503 U.S. 942, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992); United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.1990). But no circuit has held that these contractual waivers are enforceable on a basis that is unlimited and unexamined. See, e.g., Yemitan, 70 F.3d at 748 (“We do not hold that the waiver of appellate rights forecloses appeal in every circumstance.”); United States v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994) (“[A] waiver of the right not to be sentenced on the basis of a constitutionally impermissible factor may be invalid_”); United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (defendant cannot validly waive right to appeal from a denial of the claim that the plea agreement was entered into with ineffective assistance of counsel). In deciding whether to enforce an individual’s waiver of a right, courts ask whether the right implicates institutional and societal values that transcend the individual’s interests. Recently, the Supreme Court has held that, even as to evidentiary rulings, a defendant may be deemed incapable of waiving a right that has an overriding impact on public interests: [Tjhere may be some evidentiary provisions that are so fundamental to the relia bility of the fact-finding process that they may never be waived without irreparably discredit[ing] the federal courts. United States v. Mezzanatto, — U.S. —, —, 115 S.Ct. 797, 803, 130 L.Ed.2d 697 (1995) (internal quotation marks omitted) (upholding defendant’s waiver of the right to exclude from evidence his statements during plea negotiations). In support, the Court parenthetically quoted Judge Posner’s zoological example: No doubt there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept. Id. (quoting United States v. Josefik, 753 F.2d 585, 588 (7th Cir.), cert. denied, 471 U.S. 1055, 105 S.Ct. 2117, 85 L.Ed.2d" }, { "docid": "22186984", "title": "", "text": "and indeed less, of a “sea change” than numerous other legal innovations scattered across the volumes of the United States Reports and the Federal Reporter. And anyway a “sea change” exception to the rule that an unqualified appeal waiver is to be' enforced as written would be hopelessly vague. It is also unnecessary given the limitations on waiver of the right of appeal in a criminal case that are imposed by judicial interpretations of the due process clause. United States v. Schilling, 142 F.3d 388, 394-95 (7th Cir.1998); United States v. Ready, 82 F.3d 551, 556 (2d Cir.1996); United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986). As we noted in United States v. Josefik, 753 F.2d 585, 588 (7th Cir.1985), “there are limits to waiver; if the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.” Thus a sentence based on constitutionally impermissible criteria, such as race, United States v. Hicks, 129 F.3d 376, 377 (7th Cir.1997); United States v. Johnson, 347 F.3d 412, 414-15 (2d Cir.2003); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992), or a sentence in excess of the statutory maximum sentence for the defendant’s crime, United States v. Feichtinger, 105 F.3d 1188, 1190 (7th Cir.1997); United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000), can be challenged on appeal even if the defendant executed a blanket waiver of his appeal rights. See also United States v. Sines, 303 F.3d 793, 798 (7th Cir.2002); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004) (en banc) (per curiam). A particularly striking example of the divergence between the legal principles that govern plea agreements and those that govern ordinary contracts is that while a contracting party is bound by the mistakes of his lawyer, however egregious (his only remedy being a suit for malpractice), the Constitution entitles defendants entering plea agreements to effective assistance of counsel. United States v. Hodges, 259 F.3d 655, 659" }, { "docid": "3565350", "title": "", "text": "suggests that terms of supervised release are part of the sentence. See United States v. Sines, 303 F.3d 793, 798-99 (7th Cir.2002) (holding that the defendant “waived the right to appeal his sentence, including the terms and conditions of his supervised release,” when he agreed to a plea agreement that said he “expressly waives his right to appeal the conviction and sentence imposed on any ground.” (emphasis added)); see also id. at 799 n. 3 (“[W]e find that Mr. Sines waived his right to appeal the terms of his supervised release when he signed the plea agreement.”). 2. Due process argument Adkins next argues that, notwithstanding the appeal waiver, we can decide whether Special Condition Five is unconstitutional because a waiver cannot preclude review of an obvious due process violation on account of vagueness. Our cases establish that there are at least some due process exceptions to a waiver of appellate review. See United States v. Bournes, 405 F.3d 634, 637 (7th Cir.2005) (noting that there are “limitations on waiver of the right of appeal in a criminal case that are imposed by judicial interpretations of the due process clause”) (citing, inter alia, United States v. Schilling, 142 F.3d 388, 394-95 (7th Cir.1998)). Although we construe “plea agreements as contracts,” we regard plea agreements as “unique contracts ‘in which special due process concerns for fairness and the adequacy of procedural safeguards obtain.’” Carnine v. United States, 974 F.2d 924, 928 (7th Cir.1992) (quoting United States v. Ataya, 864 F.2d 1324, 1329 (7th Cir. 1988)). Thus, an appeal waiver will not prevent a defendant from challenging (1) a sentence based on “constitutionally impermissible criteria, such as race”; (2) a sentence that exceeds the statutory maximum for the defendant’s particular crime; (3) deprivation of “some minimum of civilized procedure” (such as if the parties stipu lated to trial by twelve orangutans); and (4) ineffective assistance of counsel in negotiating the plea agreement. Bournes, 405 F.3d at 637 (citations omitted). There are multiple rationales for these exceptions, such as fundamental fairness to the particular defendant and the fundamental legitimacy of the judicial process" }, { "docid": "22705874", "title": "", "text": "v. United States, 167 F.3d 1142, 1144 (7th Cir.1999). II. Because this court has not explicitly held that a waiver of § 2255 rights in a plea agreement is generally enforceable, we must decide that threshold issue. For the reasons that follow, we hold that such a waiver is generally enforceable. First, it is well established that a defendant’s waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily. See United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998); accord United States v. Nunez, 223 F.3d 956, 958 (9th Cir.2000) (confirming rule that “courts will enforce a defendant’s waiver of his right to appeal if (1) the language of the waiver encompasses the defendant’s right to appeal on the grounds claimed on appeal, and (2) the waiver is knowingly and voluntarily made” (citation omitted)). Such agreements waiving the right to appeal are subject to certain exceptions, including where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or where the agreement is otherwise unlawful. See United States v. Black, 201 F.3d 1296, 1301 (10th Cir.2000); United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994); see also United States v. Hernandez, 134 F.3d 1435, 1437-38 (10th Cir.1998) (holding that defendant “clearly waived his right to appeal the sentence imposed” because there was no suggestion that either plea agreement or waiver of statutory right to appeal was unknowing or involuntary); accord United States v. Bushert, 997 F.2d 1343, 1353 (11th Cir.1993) (holding that defendant’s waiver of the right to appeal was not knowing and voluntary because court’s Rule 11 colloquy was deficient for failing to clearly inform defendant that he was waiving his appeal rights); United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992) (stating that a defendant does not waive his right to appellate review of a sentence based on race). In addition, “a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum[ ] or to" }, { "docid": "22270220", "title": "", "text": "Mr. Black was competently represented at the change of plea hearing by stand-by counsel and that allowing withdrawal of the plea would result in a waste of judicial resources. In light of the district court’s careful consideration of these factors, we discern no abuse of its discretion in its decision to deny Mr. Black’s motion to withdraw his guilty plea. B. Alleged Waiver of Appeal We now turn to the waiver-of-appeal provision in the plea agreement. As noted above, the government relies on this provision in arguing that Mr. Black should not be allowed to appeal his sentence. This circuit has held that “[a] defendant’s knowing and voluntary waiver of the statutory right to appeal his sentence is generally enforceable.” United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir. 1998) (quoting United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir.1998)). Nevertheless, “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” United States v. Mann, 961 F.2d 493, 496 (4th Cir.1992). As the Second Circuit has noted, agreements waiving the right to appeal, like other contracts, are subject to certain public policy constraints. United States v. Yemitan, 70 F.3d 746, 748 (2d Cir.1995). For example, “a sentence tainted by racial bias could not be supported on contract principles, since neither party can be deemed to have accepted such a risk or be entitled to such a result as a benefit of the bargain.” Id. Similarly, a waiver may not be used to preclude appellate review of a sentence that exceeds the statutory maximum, see Marin, 961 F.2d at 496, or to deny review of a claim that the agreement was entered into with ineffective assistance of counsel. United States v. Henderson, 12, F.3d 463, 465 (5th Cir.1995). In this case, Mr. Black first argues that the waiver of appellate review set forth in the plea agreement is invalid because the district court itself did not address the waiver provision and explain its consequences at the change-of-plea proceedings. We are not persuaded by this argument. As" }, { "docid": "22168639", "title": "", "text": "L.Ed.2d 556 (1994); Marin, 961 F.2d at 496; see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001); United States v. Rosa, 123 F.3d 94, 100 & n. 5 (2d Cir.1997). Cf. United States v. Hollins, 97 Fed.Appx. 477, 479 (5th Cir.2004) (per curiam) (“[A] § 2255 waiver does not preclude review of a sentence that exceeds the statutory maximum.”). These courts offer several different rationales for the doctrine. Some suggest that a district court is without jurisdiction to impose a sentence exceeding the statutory maximum, Bushert, 997 F.2d at 1350 n. 18 (“It is both axiomatic and jurisdictional that a court of the United States may not impose a penalty for a crime beyond that which is authorized by statute.”); see also Andis, 333 F.3d at 886 (calling a supramaximal sentence “illegal”), which means that the unenforceability of the waiver is simply an application of the general rule that jurisdictional defects may not be waived. Other courts invoke notions of due process. See Bownes, 405 F.3d at 637 (“[S]ome minimum of civilized procedure is required by community feel ing regardless of what the defendant wants or is willing to accept.” (internal quotation marks omitted)); Marin, 961 F.2d at 496 (“[A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.”). Still others use the term “miscarriage of justice,” Hahn, 359 F.3d at 1327; Khattak, 273 F.3d at 563; Teeter, 257 F.3d at 25, which seems implicitly to invoke both the unconscionability doctrine of contract law (since plea agreements are contracts) and the supervisory power of the courts of appeals. We need not choose from among these justifications, because no matter what the theory, the general soundness of the doctrine is apparent. Thus, we agree with our unanimous sister circuits that an appellate waiver does not preclude an appeal asserting that the statutory-maximum sentence has been exceeded. The question then becomes whether Caruthers’s appeal can accurately be called a challenge of his sentence on the grounds that it exceeds the statutory maximum. The argument for such" }, { "docid": "5265605", "title": "", "text": "guilty. Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). While anyone is free to disapprove of these tactics, or plea bargaining in general, our job as judges is to apply the lawns it stands. When overcharging defendants, withholding material information, and permitting defendants to misperceive the evidence against them are all acceptable means to achieve the “legitimate criminal-justice” objective of a knowing, voluntary, and intelligent guilty plea, it makes no sense to insist limited FOIA waivers require satisfying an additional “legitimate criminal-justice” interest. Inducing Price to waive his FOIA right to records pertaining to his prosecution and its underlying investigation achieved a knowing, voluntary, and intelligent guilty plea. This is undisputed. Accordingly, “we [should] hesitate to elevate more diffused public interests above [Pricejs considered decision that he would benefit personally from the agreement.” See Rumery, 480 U.S. at 395, 107 S.Ct. 1187 (plurality opinion). Of course, as has been remarked in other contexts, “a federal court is more than a ‘recorder of contracts’ from whom the parties can purchase [relief].’ ” Local Number 93, Int’l Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); cf Keepseagle v. Per-due, 856 F.3d 1039, 1065-66 (D.C. Cir. 2017) (Brown, J., dissenting). The “structural protections” provided by the criminal justice system cannot be circumvented simply by a defendant agreeing to waive them. See Peretz v. United States, 501 U.S. 923, 937, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995); cf United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (“[I]f the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.”). When the nature of the right at issue is one that, if waived, would put the justice system’s integrity at stake, no waiver—not even a knowing, voluntary, and intelligent one—is acceptable. With this" }, { "docid": "15079204", "title": "", "text": "Cockerham, 237 F.3d 1179, 1187 (10th Cir.2001) (“[W]e hold that a plea agreement waiver of postconviction rights does not waive the right to bring a [habeas] petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver.”); United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (“We agree ... that dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant’s motion to withdraw the plea incorporates a claim that the plea agreement generally, and the defendant’s waiver of appeal specifically, were tainted by ineffective assistance of counsel.”). Most relevant to this case are those decisions commenting upon potential constitutional problems with sentences meted out pursuant to a plea agreement. In United States v. Marin, 961 F.2d 493 (4th Cir.1992), the Fourth Circuit asserted that “[A] defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court. For example, a defendant could not be said to have waived his right to appellate review of a sentence ... based on a constitutionally impermissible factor such as race.” Id. at 496; see also United States v. General, 278 F.3d 389, 399 n. 4 (4th Cir.2002) (citing Marin and noting that the government had conceded that a waiver did not bar challenges to defendant’s sentence pursuant to Apprendi or on account of his lack of competency, since both were “challenges that are not subject to contractual waivers”). The Eighth Circuit also recently reaffirmed its commitment to granting a “miscarriage of justice” exception to the enforcement of waivers. United States v. Andis, 333 F.3d 886 (8th Cir.2003) (en banc). Although the court noted that “the illegal sentence exception to the general enforceability of an appeal waiver is an extremely narrow exception,” id. at 892, it determined that a sentence allegedly based upon a miscarriage of justice should be reviewed on appeal despite any waiver, id. at 891, and that release conditions would constitute such a miscarriage of justice if “they were based on some constitutionally impermissible factor, such as race.”" }, { "docid": "5265606", "title": "", "text": "purchase [relief].’ ” Local Number 93, Int’l Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986); cf Keepseagle v. Per-due, 856 F.3d 1039, 1065-66 (D.C. Cir. 2017) (Brown, J., dissenting). The “structural protections” provided by the criminal justice system cannot be circumvented simply by a defendant agreeing to waive them. See Peretz v. United States, 501 U.S. 923, 937, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991); see also United States v. Mezzanatto, 513 U.S. 196, 204, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995); cf United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985) (“[I]f the parties stipulated to trial by 12 orangutans the defendant’s conviction would be invalid notwithstanding his consent, because some minimum of civilized procedure is required by community feeling regardless of what the defendant wants or is willing to accept.”). When the nature of the right at issue is one that, if waived, would put the justice system’s integrity at stake, no waiver—not even a knowing, voluntary, and intelligent one—is acceptable. With this principle in mind, we have previously said that a waiver will not be enforced if, “in agreeing to the waiver,” the defendant received ineffective assistance of counsel, or “if the sentencing court’s failure in some material way to follow a prescribed sentencing procedure results in a miscarriage of justice,” or if the sentence rested “on some constitutionally impermissible factor.” United States v. Guillen, 561 F.3d 527, 530-31 (D.C. Cir. 2009). Similarly, the Supreme Court has prohibited prospective waiver under the Speedy Trial Act, see Zedner v. United States, 547 U.S. 489, 502-03 & n.5, 126 S.Ct. 1976, 164 L.Ed.2d 749 (2006), as well as waiving the right to be present within Federal Rule of Criminal Procedure 43, see Crosby v. United States, 506 U.S. 255, 259-62, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993). But, when a right does not implicate the structural protections of the criminal justice system, it is susceptible to waiver—and the waiver will be upheld if it is knowing, voluntary, and intelligent. Cf. Guillen, 561 F.3d at 530 (explaining why the right" }, { "docid": "22168637", "title": "", "text": "F.3d 540, 551-52 (3d Cir.2002) (collecting cases). The principle of narrow construction in the face of ambiguities is inapplicable here because the waiver’s text unambiguously encompasses Caruthers’s sentence. The sentence of 180 months was “within the maximum provided in the offense level as determined by the Court,” because the district court calculated an offense level of 30, which provides for a maximum sentence of 210 months for those with a criminal history category of VI. Moreover, the district court’s decision to apply the mandatory minimum of the ACCA is literally an aspect of “the manner in which that sentence was determined.” Therefore, the appeal waiver’s text applies to Caruthers’s sentence. b. Enforceability of the Waiver Clause Caruthers next contends that even if the waiver provision’s language encompasses his appeal, it cannot as a matter of law preclude attacking a sentence on the grounds that it exceeds the statutory maximum. Caruthers has cited no cases from this court addressing his argument, and it indeed appears to be a matter of first impression in this circuit. It is well settled in the federal courts that “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Pursuant to this principle, our sister circuits have uniformly taken the position that an appellate waiver may not bar an appeal asserting that the sentence exceeds the statutory maximum. See, e.g., United States v. Bownes, 405 F.3d 634, 637 (7th Cir.) (Posner, J.), cert. denied, — U.S. —, 126 S.Ct. 320, 163 L.Ed.2d 273 (2005); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004) (en banc); United States v. Andis, 333 F.3d 886, 891-92 (8th Cir.) (en banc), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003); United States v. Teeter, 257 F.3d 14, 25 n. 10 (1st Cir.2001); United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir.1999); United States v. Bushert, 997 F.2d 1343, 1350 n. 18 (11th Cir.1993), cert. denied, 513 U.S. 1051, 115 S.Ct. 652, 130" }, { "docid": "22168638", "title": "", "text": "is well settled in the federal courts that “a defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court.” United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). Pursuant to this principle, our sister circuits have uniformly taken the position that an appellate waiver may not bar an appeal asserting that the sentence exceeds the statutory maximum. See, e.g., United States v. Bownes, 405 F.3d 634, 637 (7th Cir.) (Posner, J.), cert. denied, — U.S. —, 126 S.Ct. 320, 163 L.Ed.2d 273 (2005); United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir.2004) (en banc); United States v. Andis, 333 F.3d 886, 891-92 (8th Cir.) (en banc), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003); United States v. Teeter, 257 F.3d 14, 25 n. 10 (1st Cir.2001); United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir.1999); United States v. Bushert, 997 F.2d 1343, 1350 n. 18 (11th Cir.1993), cert. denied, 513 U.S. 1051, 115 S.Ct. 652, 130 L.Ed.2d 556 (1994); Marin, 961 F.2d at 496; see also United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001); United States v. Rosa, 123 F.3d 94, 100 & n. 5 (2d Cir.1997). Cf. United States v. Hollins, 97 Fed.Appx. 477, 479 (5th Cir.2004) (per curiam) (“[A] § 2255 waiver does not preclude review of a sentence that exceeds the statutory maximum.”). These courts offer several different rationales for the doctrine. Some suggest that a district court is without jurisdiction to impose a sentence exceeding the statutory maximum, Bushert, 997 F.2d at 1350 n. 18 (“It is both axiomatic and jurisdictional that a court of the United States may not impose a penalty for a crime beyond that which is authorized by statute.”); see also Andis, 333 F.3d at 886 (calling a supramaximal sentence “illegal”), which means that the unenforceability of the waiver is simply an application of the general rule that jurisdictional defects may not be waived. Other courts invoke notions of due process. See Bownes, 405 F.3d at 637 (“[S]ome minimum of civilized" } ]

[ { "docid": "3825172", "title": "", "text": "that the inclusion of additional collateral does not affect the anti-modification provision of § 1322(b)(2) and such courts preclude a strip-down of the mortgagee’s interest in those cases. See, for example, In re French, 174 B.R. 1 (boilerplate language of residential mortgage, which language provided mortgagee with a security interest in appurtenances, does not remove claim from the protection of § 1322(b)(2)); In re Halperin, 170 B.R. 500 (Bankr.D.Conn.1994) (residential mortgagees interests which included a security interest in rents, royalties, oil and gas rights, profits, stock and fixtures did not remove the mortgage from the protection of § 1322(b)(2)); In re Harris, 167 B.R. 813 (Bankr.D.S.C.1994) (residential mortgage which included a security interest in rents and fixtures did not remove mortgagee’s interest from the ambit of § 1322(b)(2)); In re Lutz, 164 B.R. 239 (Bankr.W.D.Pa.1994) (residential mortgage where bank had security interest in rents issues and profits precluded debtor from stripping down mortgagee’s lien); In re Spano, 161 B.R. 880 (Bankr.D.Conn.1993) (mortgagee’s interest in rents, fixtures and hazard insurance proceeds did not remove mortgagee from § 1322(b)(2)’s protection against modification); In re Ogles- by, 161 B.R. 917 (Bankr.E.D.Pa.1993) (holding that a security interest “in the oven, dishwasher, and fan vent in the residence, as well as rents, issues and profits therefrom” was sufficient to take the mortgage outside the scope of § 1322(b)(2)); see also, In re French, 174 B.R. at 5 and cases cited therein. Under this line of eases, perhaps the widest grant of protection afforded a mortgagee pursuant to § 1322(b)(2) is Judge Dalzell’s opinion in the District Court of Pennsylvania’s decision of In re Hirsch, 166 B.R. 248 (E.D.Pa.1994). In Hirsch, like the case sub judice, the Hirsch mortgage was secured in part by the house “together with all improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water rights and stock and all fixtures now or hereafter a part of the property.” 166 B.R. at 249. Moreover, the mortgage of a second debtor, Cheryl Kane, whose appeal was consolidated with that of" } ]

[ { "docid": "13732169", "title": "", "text": "the real property interest being protected. See Citicorp Mortgage, Inc., v. Hirsch (In re Hirsch), 166 B.R. 248, 253 (E.D.Pa.1994) (“[W]e find that Nobelman necessarily resolved the issue of whether the Nobelman’s deed of trust fell within the purview of § 1322(b)(2)). One commentator has aptly stated: The “boilerplate” case law is hopelessly irreconcilable because Congress did not contemplate that the intensely technological language of mortgage instruments would be tested against the simple but precise language of § 1322(b)(2). Without congressional action, after Nobelman there is every incentive for debtors to microscopically parse the language of every mortgage instrument in search of errant appurtenances, hereditaments, and other morsels of unreal collateral in hopes of upsetting the sanctity of the “rights” protected from modification by § 1322(b)(2). No peace will come to this area of law until Congress clarifies the statute. K. Lundin, CHAPTER 13 BANKRUPTCY, § 4.44 (1994). Without the benefit of a finely-tuned statute or a clear mandate from the Supreme Court, several post-Nobelman decisions have ruled that the inclusion of additional collateral, similar to the Appurtenances set forth in the June Mortgage, does not affect the anti-modification provisions of § 1322(b)(2). E.g. In re Halperin, 170 B.R. 500 (Bankr.D.Conn.1994) (residential mortgagee’s security interest which extended to rents, royalties, oil and gas rights, profits, stock and fixtures did not remove mortgage from protection of § 1322(b)(2)); In re Harris, 167 B.R. 813 (Bankr.D.S.C.1994) (residential mortgage also covering rents and fixtures did not exclude mortgagee from protection of § 1322(b)(2)); Miami Valley Bank v. Lutz (In re Lutz), 164 B.R. 239 (Bankr.W.D.Pa.1994) (residential mortgage granting bank security interest in rents, issues, and profits did not extend bank’s security interest beyond interest in debtor’s residence so as to permit strip down); In re Spano, 161 B.R. 880 (Bankr.D.Conn.1993) (mortgagee’s interest in rents, fixtures and hazard insurance proceeds did not remove mortgagee from § 1322(b)(2)’s protection against modification); In re Hirsch, 166 B.R. 248 (district court held (1) security interest in royalties, mineral, oil and gas rights, water rights, fixtures was not additional security for § 1322(b)(2) purposes; and (2) additional security" }, { "docid": "13732170", "title": "", "text": "to the Appurtenances set forth in the June Mortgage, does not affect the anti-modification provisions of § 1322(b)(2). E.g. In re Halperin, 170 B.R. 500 (Bankr.D.Conn.1994) (residential mortgagee’s security interest which extended to rents, royalties, oil and gas rights, profits, stock and fixtures did not remove mortgage from protection of § 1322(b)(2)); In re Harris, 167 B.R. 813 (Bankr.D.S.C.1994) (residential mortgage also covering rents and fixtures did not exclude mortgagee from protection of § 1322(b)(2)); Miami Valley Bank v. Lutz (In re Lutz), 164 B.R. 239 (Bankr.W.D.Pa.1994) (residential mortgage granting bank security interest in rents, issues, and profits did not extend bank’s security interest beyond interest in debtor’s residence so as to permit strip down); In re Spano, 161 B.R. 880 (Bankr.D.Conn.1993) (mortgagee’s interest in rents, fixtures and hazard insurance proceeds did not remove mortgagee from § 1322(b)(2)’s protection against modification); In re Hirsch, 166 B.R. 248 (district court held (1) security interest in royalties, mineral, oil and gas rights, water rights, fixtures was not additional security for § 1322(b)(2) purposes; and (2) additional security interest in furniture and other personal property did not deprive mortgagee of protection from modification). A number of courts, most notably out of the Third Circuit, have reached a contrary result. In re Hammond, 27 F.3d 52 (mortgage that created security interest in debt- or’s personal property in addition to lien on debtor’s principal residence could be bifurcated); Johns v. Rousseau Mortgage Corp. (In re Johns), 165 B.R. 405 (E.D.Pa.1994), aff'd, 37 F.3d 1021 (3rd Cir.1994) (Chapter 13 plan could modify residential mortgagee’s rights where mortgagee’s interest was secured by other collateral including “alterations, additions, improvements, appliances, machinery, furniture and equipment”); Hutchins v. Commonwealth Mortgage Corp., 165 B.R. 401 (E.D.Pa.1994) (district court affirmed bankruptcy court’s decision to allow bifurcation of residential mortgagee’s claim secured also by appliances, machinery, furniture and equipment); Peoples First National Bank v. Haraschak (In re Haraschak), 169 B.R. 325 (Bankr.M.D.Pa.1994) (residential mortgage secured by all improvements, fixtures, appliances, and equipment was excluded from protection of § 1322(b)(2)); Third National Bank & Trust Co. v. Tallo (In re Tallo), 168 B.R. 573" }, { "docid": "14972354", "title": "", "text": "interest in property other than Debtors’ primary residence and, therefore, the mortgage is modifiable. The parties have stipulated that Citicorp holds the first mortgage on Debtors’ residence and that the mortgage includes the following language: TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and gas rights and profits, water rights and stock and all fixtures now or hereafter a part of the property.... Citicorp argues that its mortgage is no different from that involved in Nobelman v. American Savings Bank, 508 U.S. 324, 329, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), and that rents constitute real property. We first note that the Supreme Court did not discuss the particular items of security involved in the mortgage in Nobel-man. The Court held only that the rights of a holder of a claim secured solely by an interest in the debtor’s principal residence were not modifiable under § 1322(b)(2). Second, property interests are created and defined under state law. Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110; Butner v. U.S., 440 U.S. 48, 54-55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Under Pennsylvania law, unaccrued rents are reversionary real property. Marine National Bank v. Northwest Pennsylvania Bank & Trust Co., 308 Pa.Super. 154, 454 A.2d 67 (1982). This is consistent with Pennsylvania law that construes mortgages as conveyances of defeasible title to the real estate. Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993); Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980). In In re Wilkinson, 189 B.R. 327, 329-30 (Bankr.E.D.Pa.1995), we examined Pennsylvania real property law which provides that a devise of “rents, issues and profits” passes title to the real estate. 189 B.R. at 329, citing In re Carmany’s Estate, 357 Pa. 296, 302, 53 A.2d 731, 734 (1947). See also Shearer v. Miller, 185 Pa. 149, 39 A. 846 (1898)(conveyanee of rents, issues and profits conveys right to lease land and cut and sell the wood). Further, real property includes tenements which include rents. Wilkinson, 189 B.R. at 329," }, { "docid": "7256162", "title": "", "text": "B.R. 145, 146-47 (W.D.Tenn.1989) (optional credit life and disability insurance written in connection with loan constitutes additional security); In re Wilson, 91 B.R. 74, 76 (Bankr.W.D.Mo.1988) (where creditor took security interest in three insurance policies, including proceeds and return premiums, constitutes additional security); In re Stiles, 74 B.R. 708, 710 (Bankr.N.D.Ala.1987) (interest in policy on lives of debtors constitutes additional security). As stated, to determine whether the language in the clause creates security in “additional collateral” independent of the realty, an examination of the language in the loan documents and the relevant state law must be conducted. Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110; Eastwood 192 B.R. at 96. In the instant matter, the Mortgage states: “The Funds are pledged as additional security for the sums secured by this Security Instrument.” Mortgage at 4. At first blush, it would appear this language would create a security interest in additional personalty. A review of the entire Funds Provision and the nature of the Funds contributions demonstrates that the Funds do not constitute additional security because they do not represent a property interest of the Debtor separate from the Residence Property. Contra Libby, 200 B.R. at 567 (additional security found in attempt to reach “all money, securities and other personal property on deposit or in [mortgagees’] possession or control”). In Libby, the debtors were required to make monthly advance tax payments to the mortgagee, which were placed in an escrow account created by the mortgagee. The court held the use of a tax escrow account was not sufficient to defeat the anti-modification provisions of Section 1322, even though the escrow account was in the possession and control of the mortgagee. The court reasoned that, under state law, once the money was placed in the escrow account, the debtors no longer retained a property interest— “the payments [were] made for the benefit of the mortgagee and the mortgagors do not retain any beneficial interest in the money deposited.” Id. at 566 (citing American National Bank & Trust v. Leonard, 166 N.J.Super. 216, 219, 399 A.2d 663 (App.Div.1979) (internal quotes omitted)). Similarly," }, { "docid": "7256160", "title": "", "text": "placed in the escrow account, mortgagee cannot be said to be holding a security interest in debtor’s property). By contrast, other courts which have addressed related issues have determined the provision of items such as insurance in a mortgage does not create additional security within the meaning of the Bankruptcy Code. See Davis, 989 F.2d at 211 (“we hold that a requirement of hazard insurance with the creditor designated as beneficiary will not ordinarily take a creditor outside the protection of § 1322(b)(2)”); In re Washington, 967 F.2d 173, 174 (5th Cir.1992) (credit life and disability insurance does not constitute additional security); Halperin, 170 B.R. at 502 (mortgage agreement which took a security interest in certain funds to be held in an escrow account to pay for real estate taxes and hazard insurance premiums did not constitute additional security sufficient to remove creditor from meaning of § 1322(b)(2)); In re Spano, 161 B.R. 880 (Bankr.D.Conn.1993) (additional security interest in casualty insurance proceeds afforded anti-modification protection under § 1322(b)(2) because hazard insurance proceeds have no independent existence apart from the improvements insured on the realty.); In re Jackson, 136 B.R. 797 (Bankr.N.D.Ill.1992) (“[T]he boilerplate language granting the mortgagee the right to receive and use property insurance proceeds in the event of some destruction of the property does not create an additional type of collateral securing the mortgage obligation.”); In re Ireland 137 B.R. 65 (Bankr.M.D.Fla.1992) (neither boilerplate language in mortgage nor credit life and disability policies constitute additional security); In re Braylock, 120 B.R. 61, 64 (Bankr.N.D.Miss.1990) (“to hold that ... [fire and casualty] insurance coverage constitutes additional security interest would completely eviscerate the protective exception for residential lenders found in Section 1322(b)(2)”). Many of the courts which have held that insurance proceeds do provide additional security were reviewing mortgages that took an interest in insurance on the life of the debtor, such as credit life or disability insurance, rather than insurance on the property, such as hazard insurance. See In re Selman, 120 B.R. 576 (Bankr.D.N.M.1990) (credit life and hazard insurance constitutes additional security); Transouth Fin. Corp. v. Hill, 106" }, { "docid": "7256166", "title": "", "text": "attendant in title to property in this state. See N.J.S.A. 54:4-1 . Accordingly, “a security interest in the escrow account provided for under the terms of Nationsbanc’s mortgage which is secured by the Debtor’s principal residence is part of the same security and not actually additional security. It arises out of the definition of real property and should not be considered personalty.” Appellee’s Brief at 9-10. See French, 174 B.R. at 7 (“[t]he existence of collateral which is nothing more than [ ] an enhancement should not result in a forfeiture by the lender of the anti-modification provisions of Section 1322(b)(2)”). The contributed Funds, if any, were paid into an Escrow Account created by Nationsbanc. The Debtor lost any property interest in the Funds once they were placed in the Escrow Account. See Libby, 200 B.R. at 566-67. The Funds were earmarked for payment of taxes and hazard insurance. Nationsbanc did not take an interest in the proceeds or in returned premiums. Nationsbanc returned or gave credit for any excess contributions. The existence of the Escrow Account does not remove the Mortgage from the anti-modification protection afforded by Section 1322(b)(2). To the extent other courts in this Circuit have reached contrary results, see, e.g., Crystian, 197 B.R. at 803; Pinto, 191 B.R. at 612-613, those opinions are not persuasive. The courts based the holdings on the dicta in Hammond, as well as other Circuit opinions which did not specifically address escrow accounts as additional security. The courts rendered a decision without conducting analysis into the nature of the escrow accounts and whether they constituted additional personalty apart from the realty. The result reached here is consistent with the purpose behind the anti-modification provision, which was intended to increase the accessibility of home mortgage funds to homeowners by assuring lenders that their expectations would not be frustrated. Nobelman, 508 U.S. at 332, 113 S.Ct. at 2111-12 (“favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home lending market”) (citation omitted); PNC Mortg. Co. v. Dicks, 199 B.R. 674 (N.D.Ind.1996) (citations omitted); Grubbs v. Houston First" }, { "docid": "7256159", "title": "", "text": "escrow account funds, but because of a security interest in appliances, machinery, furniture and equipment. See Hammond, 27 F.3d at 53. Nevertheless, courts in this Circuit have cited the dicta in Hammond hi conjunction with the strict interpretation of Section 1322 by the Third Circuit, to support the finding of additional security in escrow accounts or insurance proceeds. See Jones, 201 B.R. at 375 (security interest in condemnation awards and insurance proceeds is additional collateral allowing the claim to be subject to modification); In re Crystian, 197 B.R. 803 (Bankr.W.D.Pa.1996) (“we are constrained to follow the dicta in Hammond and find that the security interest in escrow funds contained in this mortgage is additional security.”); In re Pinto, 191 B.R. 610, 612-613 (Bankr.D.N.J.1996) (modification allowed where mortgage provides that a lien would also attach to certain funds to be held in escrow to provide for payment of yearly real estate taxes and hazard insurance premiums). But see In re Libby, 200 B.R. 562, 567 (Bankr.D.N.J.1996) (where debtors do not hold a property interest in money placed in the escrow account, mortgagee cannot be said to be holding a security interest in debtor’s property). By contrast, other courts which have addressed related issues have determined the provision of items such as insurance in a mortgage does not create additional security within the meaning of the Bankruptcy Code. See Davis, 989 F.2d at 211 (“we hold that a requirement of hazard insurance with the creditor designated as beneficiary will not ordinarily take a creditor outside the protection of § 1322(b)(2)”); In re Washington, 967 F.2d 173, 174 (5th Cir.1992) (credit life and disability insurance does not constitute additional security); Halperin, 170 B.R. at 502 (mortgage agreement which took a security interest in certain funds to be held in an escrow account to pay for real estate taxes and hazard insurance premiums did not constitute additional security sufficient to remove creditor from meaning of § 1322(b)(2)); In re Spano, 161 B.R. 880 (Bankr.D.Conn.1993) (additional security interest in casualty insurance proceeds afforded anti-modification protection under § 1322(b)(2) because hazard insurance proceeds have no independent" }, { "docid": "13732168", "title": "", "text": "addressed the issue of when a claim is considered to be secured “only by an interest in real property that is the debtor’s principal residence.” See 11 U.S.C. § 1322(b)(2) (emphasis supplied). In the Nobelman case itself, the deed of trust securing the debtor’s premises also provided a security interest in “an undivided .67% interest in the common areas of the condominium complex, escrow funds, proceeds of hazard insurance, and rents.” See Nobelman v. American Savings Bank (In re Nobelman), 129 B.R. 98, 99 (N.D.Tex.1991), aff'd, 968 F.2d 483 (5th Cir. 1992), aff'd, — U.S. -, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). The effect of this “additional” security interest was never discussed by the Supreme Court. A technical reading of § 1322(b)(2) might suggest that Congress intended to strictly limit the protection of claims that would fall under the statute. On the other hand, an expansive reading of Nobelman would suggest that the failure of the Supreme Court to address the so-called boilerplate interests constitutes an acknowledgement that such interests are merely incidental to the real property interest being protected. See Citicorp Mortgage, Inc., v. Hirsch (In re Hirsch), 166 B.R. 248, 253 (E.D.Pa.1994) (“[W]e find that Nobelman necessarily resolved the issue of whether the Nobelman’s deed of trust fell within the purview of § 1322(b)(2)). One commentator has aptly stated: The “boilerplate” case law is hopelessly irreconcilable because Congress did not contemplate that the intensely technological language of mortgage instruments would be tested against the simple but precise language of § 1322(b)(2). Without congressional action, after Nobelman there is every incentive for debtors to microscopically parse the language of every mortgage instrument in search of errant appurtenances, hereditaments, and other morsels of unreal collateral in hopes of upsetting the sanctity of the “rights” protected from modification by § 1322(b)(2). No peace will come to this area of law until Congress clarifies the statute. K. Lundin, CHAPTER 13 BANKRUPTCY, § 4.44 (1994). Without the benefit of a finely-tuned statute or a clear mandate from the Supreme Court, several post-Nobelman decisions have ruled that the inclusion of additional collateral, similar" }, { "docid": "7256155", "title": "", "text": "Property Provision, particularly the reference to rents and profits, does not attempt to create a security interest in additional collateral beyond that granted in the Residence Property. Indeed, rents and profits would not exist but for the real property. The Mortgage is not removed from the anti-modification protection of Section 1322(b)(2) by reference to rents and profits in the Secured Property Provision. See In re Lievsay, 199 B.R. 705, 709 (9th Cir. BAP 1996) (“additional collateral language in the deed of trust is so closely associated with securing the primary residence that it prohibits Debtor from stripping down the lien under section 1123(b)(5)”); In re Davis, 989 F.2d 208, 211 (6th Cir.1993) (“rents, royalties, profits and fixtures” were mere terms of surplusage and did not increase the rights of the mortgagee in the real estate of the debtor); In re Halperin, 170 B.R. 500, 501 (Bankr.D.Conn.1994) (same); Eastwood, 192 B.R. at 105 (where mortgage simply described “the fee simple absolute, with all its appurtenant hereditaments as defined under common law and as codified in N.J.S.A. 46:3-16,” mortgage sought no more than a Ken on the fee). b. Escrow Account In addition to the Secured Property Provision, the Mortgage required the Debtor to contribute funds (“Funds”) to Nationsbanc on a monthly basis for the payment of yearly taxes and insurance premiums (“Funds Provision”). The Funds Provision provides: Funds for Taxes and Insurance. Subject to applicable law or to written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note, until the Note is paid in full, a sum (“Funds”) equal to one-twelfth of: (a) yearly taxes and assessments which may attain priority over this Security Instrument; (b) yearly leasehold payments or ground rents on the Property, if any; (c) yearly hazard insurance premiums, if any. These items are called “escrow items.” Lender may estimate the Funds due on the basis of current data and reasonable estimates of future escrow items. The Funds shall be held in an institution the deposits or accounts of which are insured or guaranteed by a federal or state" }, { "docid": "7256163", "title": "", "text": "because they do not represent a property interest of the Debtor separate from the Residence Property. Contra Libby, 200 B.R. at 567 (additional security found in attempt to reach “all money, securities and other personal property on deposit or in [mortgagees’] possession or control”). In Libby, the debtors were required to make monthly advance tax payments to the mortgagee, which were placed in an escrow account created by the mortgagee. The court held the use of a tax escrow account was not sufficient to defeat the anti-modification provisions of Section 1322, even though the escrow account was in the possession and control of the mortgagee. The court reasoned that, under state law, once the money was placed in the escrow account, the debtors no longer retained a property interest— “the payments [were] made for the benefit of the mortgagee and the mortgagors do not retain any beneficial interest in the money deposited.” Id. at 566 (citing American National Bank & Trust v. Leonard, 166 N.J.Super. 216, 219, 399 A.2d 663 (App.Div.1979) (internal quotes omitted)). Similarly, in the instant matter, despite the “additional security” language in the Mortgage, the Funds provided no additional collateral, apart from the realty, to secure the loan. Once the Funds were placed in the Escrow Account, the Debtor lost property interest in the collateral. Unlike language where the security interest is taken in appliances, equipment or machinery, the “additional security” created by the Funds did not have an independent existence and served only to protect Nationsbanc’s interest in the Residence Property. The tax contributions protected Nationsbanc from the imposition of a statutory tax lien on the Residence Property while the hazard insurance contributions ensured the Residence Property would be protected in the event of destruction. The Escrow Account was taken not as additional collateral of the Debtor to secure the Mortgage, but was created pursuant to the Mortgage to protect the Residence Property. The Funds were not included in the Secured Property Provision of the Mortgage and, therefore, “[did] not constitute additional security in the common sense usage of the term in Section 1322(b)(2).” In re" }, { "docid": "3606620", "title": "", "text": "In specifically discussing the requirement of insurance, the Sixth Circuit reasoned that “hazard insurance is merely a contingent interest-an interest that is irrelevant until the occurrence of some triggering event and not an additional security for the purposes of § 1322(b)(2).” Id. at 211 (citing Matter of Washington, 967 F.2d 173, 174-75 (5th Cir.1992)). Similarly, items such as “rents, royalties, profits, and fixtures” are incidental benefits of the real property and not additional security. See id. at 212-13. This rationale also applies to escrow funds and miscellaneous proceeds that are explicitly tied to the real property. Deeming these items additional security for the purposes of § 1322(b)(2) would “completely eviscerate” the anti-modification exception of § 1322(b)(2) because many deeds of trust which encumber improved real property contain these provisions to protect the lender’s investment in the real property. See id. at 211 (quoting In re Braylock, 120 B.R. 61, 63 (Bankr.N.D.Miss.1990)); see also In re Jackson, 136 B.R. 797, 802 (Bankr.N.D.Ill.1992) (“... the boilerplate language granting the mortgagee the right to receive and use property insurance proceeds in the event of some destruction of the property does not create an additional type of collateral securing the mortgage obligation”). Indeed, “fflt would contravene the purpose of [§ ] 1322(b)(2) to find additional security in the mere attempt to ensure protection of the primary security, the [r]esidence [property.” In re Rosen, 208 B.R. 345, 354 (Bankr.D.N.J.1997) (emphasis in original). Here, the Deed of Trust secures “the repayment of the Loan, and all renewals, extensions and modifications of the Note; [] the performance of Borrower’s covenants and agreements under th[e] Security Instrument and the Note.” EOF No. 18-1 at 3. The Deed of Trust specifies that the borrower “grants and conveys ... the following described property” and then notes the address of Akwa’s residence. Id. This language creates a security interest in the residence. Stated another way, it creates a “charge against or interest in property to secure payment of a debt or performance of an obligation.” See 11 U.S.C. § 101(37). There is no similar language in the document’s discussion of escrow" }, { "docid": "19078202", "title": "", "text": "argues that Mellon’s mortgage includes an encumbrance against personal property because it takes a security interest in escrow funds. In conformance with the Court’s own expectations of the provisions normally included in a residential mortgage, the Debtor’s mortgage requires him to make monthly payments to Mellon in addition to the amount necessary to amortize the loan. This additional sum is to be held by Mellon in escrow and used to pay for insurance and taxes for the property. The fund serves the obvious purpose of protecting and preserving the value of Mellon Bank’s mortgage on the property. Although the funds themselves are personal property,' for the reasons explained above the Court holds as a matter of federal bankruptcy law that they are not separate from the real estate within the meaning of section 1322(b)(2). The escrow funds, however much they might be, are certain to have negligible independent value in comparison to the real estate and are held for the purpose of protecting Mellon’s mortgage. Escrow accounts are, moreover, a typical feature in every home mortgage, and to hold that their existence removes a mortgage from the anti-modification clause emasculates the statute. The Court cannot comprehend that Congress intended such a result. Furthermore, as of the date of the bankruptcy filing, the Debtor was a number of months in arrears on his mortgage. This circumstance leads the Court to believe that there were no funds in existence on the date of the bankruptcy filing for a security interest to attach. Some courts have held that the nonexistence of personal property eollat- eral is in and of itself enough to prevent a mortgage from being removed from the protection of the anti-modification clause. French, 174 B.R. at 7; In re Boisvert, 156 B.R. 357 (Bankr.D.Mass.1993). Contra In re Libby, 200 B.R. 562, 567 (Bankr.D.N.J.1996) (holding that creditor’s rights are determined from the face of the mortgage document and not by looking beyond it to whether a particular type of collateral actually exists). In smn, the Court concludes that Mellon’s mortgage is subject to the anti-modification clause. The mortgage does not take" }, { "docid": "7256158", "title": "", "text": "that argument was not presented at the 22 February Hearing. The Debtor was afforded seven days from the 22 February Hearing to review the Mortgage and advise the Bankruptcy Court of any clause overlooked which might create additional security. See 22 February 1996 Tr., 14. By way of the 28 February Letter, Debtor informed the court that no additional security was received by Nationsbanc. See 28 February Letter. The Third Circuit has not addressed the issue of whether funds for taxes and insurance, held in an escrow account, constitute additional security for the purposes of Section 1322(b)(2). In dicta, the Circuit has stated that “creditors who demand additional security interests in personalty or escrow accounts and the like pay a price. Their claims become subject to modification. Their recourse, if they wish to avoid modification, is to forego the additional security.” Hammond, 27 F.3d at 57. (citing 5 Collier on Bankruptcy P 1322.06 at 1322-14-15). The Hammond mortgage, however, was not removed from the anti-modification protection of Section 1322(b)(2) due to a security interest in escrow account funds, but because of a security interest in appliances, machinery, furniture and equipment. See Hammond, 27 F.3d at 53. Nevertheless, courts in this Circuit have cited the dicta in Hammond hi conjunction with the strict interpretation of Section 1322 by the Third Circuit, to support the finding of additional security in escrow accounts or insurance proceeds. See Jones, 201 B.R. at 375 (security interest in condemnation awards and insurance proceeds is additional collateral allowing the claim to be subject to modification); In re Crystian, 197 B.R. 803 (Bankr.W.D.Pa.1996) (“we are constrained to follow the dicta in Hammond and find that the security interest in escrow funds contained in this mortgage is additional security.”); In re Pinto, 191 B.R. 610, 612-613 (Bankr.D.N.J.1996) (modification allowed where mortgage provides that a lien would also attach to certain funds to be held in escrow to provide for payment of yearly real estate taxes and hazard insurance premiums). But see In re Libby, 200 B.R. 562, 567 (Bankr.D.N.J.1996) (where debtors do not hold a property interest in money" }, { "docid": "14972355", "title": "", "text": "113 S.Ct. at 2110; Butner v. U.S., 440 U.S. 48, 54-55, 99 S.Ct. 914, 918, 59 L.Ed.2d 136 (1979). Under Pennsylvania law, unaccrued rents are reversionary real property. Marine National Bank v. Northwest Pennsylvania Bank & Trust Co., 308 Pa.Super. 154, 454 A.2d 67 (1982). This is consistent with Pennsylvania law that construes mortgages as conveyances of defeasible title to the real estate. Commerce Bank v. Mountain View Village, Inc., 5 F.3d 34 (3d Cir.1993); Warden v. Zanella, 283 Pa.Super. 137, 423 A.2d 1026 (1980). In In re Wilkinson, 189 B.R. 327, 329-30 (Bankr.E.D.Pa.1995), we examined Pennsylvania real property law which provides that a devise of “rents, issues and profits” passes title to the real estate. 189 B.R. at 329, citing In re Carmany’s Estate, 357 Pa. 296, 302, 53 A.2d 731, 734 (1947). See also Shearer v. Miller, 185 Pa. 149, 39 A. 846 (1898)(conveyanee of rents, issues and profits conveys right to lease land and cut and sell the wood). Further, real property includes tenements which include rents. Wilkinson, 189 B.R. at 329, citing In re Reel’s Estate, 263 Pa. 248, 253, 106 A. 227, 229 (1919). See also Peoples-Pittsburgh Trust Co. v. Henshaw, 141 Pa.Super. 585, 15 A.2d 711, 714 (1940)(conveyanee by mortgage carries as an incident of the reversion the right to rents in event of default). Furthermore, by statute a conveyance of land in Pennsylvania transfers the rents. 21 Pa. Stat. § 3. It is clear that rents are real property in Pennsylvania by virtue of Pennsylvania law. Because property rights are created and defined under state law, see No-belman, 508 U.S. at 329, 113 S.Ct. at 2110; Butner, 440 U.S. at 54-55, 99 S.Ct. at 918, the inclusion of a security interest in “rents” in a Pennsylvania mortgage does not constitute a security interest in property other than a debtor’s principal residence. Accordingly, the mortgage cannot be bifurcated under 11 U.S.C. § 1322(b)(2) on the ground that it includes a security interest in rents. If the language cited above was the only portion of the mortgage before us, we would find that Citicorp has" }, { "docid": "19078194", "title": "", "text": "with it a right to the rents, profits and fixtures associated with the land. The court observed that a transference of property would transfer these components of ownership whether or not they were individually itemized. Therefore, the fact that the creditor’s mortgage contained an itemization of these property interests was of no significance because the grant of the mortgage included them anyway. Accordingly, the court held that the mortgage was secured by nothing more than the debtor’s real estate. Accord Wilkinson, 189 B.R. at 327 (reaching the same conclusion under Pennsylvania law); Brown, 189 B.R. at 3 (same); Lutz, 164 B.R. at 239 (same); In re Anderson, 209 B.R. 639, 641 (Bankr.M.D.Pa.1997) (right to rents not separate property interest under Pennsylvania law); see also Davis, 989 F.2d at 212 (“[w]e hold that the ... phrase [’heredita-ments and appurtenances, rents, royalties, profits, and fixtures’] refers to benefits which are merely incidental to an interest in real property, and find that [the creditor’s] interest in these incidental benefits does not constitute additional security”); In re Spano, 161 B.R. 880, 884 (Bankr.D.Conn.1993) (“the fact that the ... mortgage may have used many words to describe component parts of the real property when the word ‘real prop-erty5 may have sufficed, does not mean that the [mortgagee] has a security interest in something other than [real property]”). The court in In re Rosen, 208 B.R. 345 (D.N.J.1997), held that an escrow account was not additional security. Much like the present case, the mortgage in Rosen provided for payment by the debtor into an escrow account to be held by the bank to use for the payment of real estate taxes and casualty insurance. The mortgage stated that the bank held the funds as additional security for the debt. Initially, the court observed that the escrow was not additional security because under New Jersey law a debtor lost his property interest in money so deposited. The court went on, however, and explained that even if the debtor retained an interest in the funds, they could not constitute separate security in view of their function to protect" }, { "docid": "19078193", "title": "", "text": "objective. Accordingly, the court does not believe that section 1322(b)(2) should be read so narrowly that the presence of common home mortgage features such as security interests in escrow accounts or insurance proceeds results in the removal of a mortgage from protection of the anti-modification clause. These features are in nearly every mortgage and thus to hold otherwise would render section 1322(b)(2) meaningless and defeat Congress’ objective. The court finds guidance in decisions that interpret section 1322(b)(2) by reference to the policy of protecting the rights of home mortgage lenders and that observe appropriate sensitivity for the contours of state property law. The court in In re Eastwood, 192 B.R. 96 (Bankr.D.N.J.1996), ruled that a mortgagee who had a security interest in, among other things, rents, profits and fixtures, was within the anti-modification clause. This court analyzed New Jersey property law and found that the particular items the debtor asserted were personal property were in actuality already included in a landowner’s property rights. In other words, ownership in fee simple of real estate automatically carried with it a right to the rents, profits and fixtures associated with the land. The court observed that a transference of property would transfer these components of ownership whether or not they were individually itemized. Therefore, the fact that the creditor’s mortgage contained an itemization of these property interests was of no significance because the grant of the mortgage included them anyway. Accordingly, the court held that the mortgage was secured by nothing more than the debtor’s real estate. Accord Wilkinson, 189 B.R. at 327 (reaching the same conclusion under Pennsylvania law); Brown, 189 B.R. at 3 (same); Lutz, 164 B.R. at 239 (same); In re Anderson, 209 B.R. 639, 641 (Bankr.M.D.Pa.1997) (right to rents not separate property interest under Pennsylvania law); see also Davis, 989 F.2d at 212 (“[w]e hold that the ... phrase [’heredita-ments and appurtenances, rents, royalties, profits, and fixtures’] refers to benefits which are merely incidental to an interest in real property, and find that [the creditor’s] interest in these incidental benefits does not constitute additional security”); In re Spano, 161" }, { "docid": "14972356", "title": "", "text": "citing In re Reel’s Estate, 263 Pa. 248, 253, 106 A. 227, 229 (1919). See also Peoples-Pittsburgh Trust Co. v. Henshaw, 141 Pa.Super. 585, 15 A.2d 711, 714 (1940)(conveyanee by mortgage carries as an incident of the reversion the right to rents in event of default). Furthermore, by statute a conveyance of land in Pennsylvania transfers the rents. 21 Pa. Stat. § 3. It is clear that rents are real property in Pennsylvania by virtue of Pennsylvania law. Because property rights are created and defined under state law, see No-belman, 508 U.S. at 329, 113 S.Ct. at 2110; Butner, 440 U.S. at 54-55, 99 S.Ct. at 918, the inclusion of a security interest in “rents” in a Pennsylvania mortgage does not constitute a security interest in property other than a debtor’s principal residence. Accordingly, the mortgage cannot be bifurcated under 11 U.S.C. § 1322(b)(2) on the ground that it includes a security interest in rents. If the language cited above was the only portion of the mortgage before us, we would find that Citicorp has a security interest only in real property that is Debtors’ primary residence. However, the mortgage also includes as additional security the tax and insurance escrow which consists of funds and is personalty. The mortgage directs the lender to apply the escrow “first, to late charges due under the Note; second, to prepayment charges due under the Note; third, to amounts payable under paragraph 2 [i.e., to taxes and insurance]; fourth, to interest due; and last, to principal due.” Mortgage at ¶3, Exhibit A to Stipulation of Facts Between Debtor and Citicorp Mortgage, Inc. In Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117, (1974), the Pennsylvania Supreme Court explained the inception of lenders’ practice of requiring debtors to deposit funds toward tax and insurance payments as follows: In the 1930s substantial numbers of foreclosures were caused by inability to pay annual assessments. As a result of this, banks began requiring the monthly tax payments. The theory was that individual homeowners, especially small borrowers, would find it easier to make monthly" }, { "docid": "7256150", "title": "", "text": "F.2d 123 (3d Cir.1990). The additional collateral removes the mortgage from the protection of Section 1322(b)(2) permitting bifurcation and modification of the claim. See Sapos v. Provident Inst. of Sav. in Town of Boston, 967 F.2d 918, 925-26 (3d Cir.1992); Wilson, 895 F.2d at 128. In Hammond, the creditors took a purchase money mortgage on the Hammonds’ home, as well as “any and all appliances, machinery, furniture and equipment (whether fixtures or not) of any nature whatsoever now or hereafter installed....” Hammond, 27 F.3d at 53. The Circuit held that where a mortgage creates a security interest in a debtor’s personal property, in addition to a lien on the residence, the mortgage is removed from the protection of the anti-modification clause of Section 1322(b)(2). Id. at 58. The mortgage may then be bifurcated into secured and unsecured portions pursuant to Section 506(a). Id. In the instant matter, Debtor sought to cram down the Mortgage to its fair market value of $290,000. Citing Section 1322(b)(2) and In re Eastwood, 192 B.R. 96 (Bankr.D.N.J.1996), the Bankruptcy Court denied the Motion to Cram Down the Mortgage and precluded Debtor from presenting proofs as to the valuation of the Residence Property. See 22 February 1996 Tr., 10-13. Debtor argues Section 1322(b)(2) is inapplicable because the Mortgage took security in the Debtor’s personal property in addition to the lien on the Residence Property. Appellant’s Brief at 13. Specifically, Debtor contends the Bankruptcy Court erred because the relevant language in the Mortgage takes security in personalty as well as realty — specifically rents, profits and tax and insurance escrow (“Escrow Account”). Id. at 13. The first issue presented in this appeal is whether the language in the Mortgage created a security interest in collateral other than the Residence Property, removing the Mortgage from the anti-modification protection of Section 1322(b)(2). a. Rents and Profits Language The relevant clause of the Mortgage which defines what property is secured by the Mortgage (the “Secured Property Provision”) states: TOGETHER WITH all the improvements now and hereafter erected on the property, and all easements, rights, appurtenances, rents, royalties, mineral, oil and" }, { "docid": "14972358", "title": "", "text": "payments of one-twelfth the yearly taxes, than to meet in a single payment the annual bill. The practice has continued ever since. 457 Pa. at 141, 320 A.2d at 121. Under the escrow system the lender establishes an account for the borrower which is credited when the borrower makes the required real estate tax and insurance payments and debited when the tax or insurance premium is paid by the bank to the appropriate entity. Id. When the property is sold, excess escrow funds are either applied to any outstanding balance on the mortgage or are refunded to the mortgagor. By no stretch of the imagination can these funds be considered “real property”. They are personalty required and held by the lender to ensure that the mortgagee’s interest is not put at risk should the mortgagor fail to pay required real estate taxes or maintain insurance. Black’s Law Dictionary 1153 (6th Ed.1990). In In re Crystian (Mellon Bank, N.A. v. Crystian), 197 B.R. 803 (Bankr.W.D.Pa.1996), we held that, based on In re Hammond, 27 F.3d 52 (3d Cir.1994), Sapos v. Provident Institution of Savings, 967 F.2d 918 (3d Cir.1992), and Wilson v. Commonwealth Mortgage Corporation, 895 F.2d 123 (3d Cir.1990), the escrow taken as additional security took the mortgage out of the protection of § 1322(b)(2). In dicta in Hammond the Court of Appeals said creditors who demand additional security interests in personalty or escrow accounts and the like pay a price. Their claims become subject to modification. Their recourse, if they wish to avoid modification, is to forego the additional security. 27 F.3d at 57. Further, Nobelman did expressly overrule the holding in Wilson and Sapos that section 1322(b)(2) does not preclude a debtor from modifying the undersecured portion of a mortgage .... The Supreme Court’s opinion in Nobel-man, however, did not expressly address our alternate rationale .... we also held that a mortgagee who has an additional security interest in property other than the real estate which is the mortgagors’ primary residence cannot claim any benefit from section 1322(b)(2)’s antimodification provision and therefore such a mortgagee’s claim can be" }, { "docid": "3825187", "title": "", "text": "bifurcation of under-secured homestead mortgages.\" 508 U.S. at 327 fit. 2, 113 S.Ct. at 2109 fn. 2. . The Bankruptcy Court's decision has been cited as In re Hirsch, 155 B.R. 688 (Bankr.E.D.Pa.1993). . Significantly, in Hirsch, 166 B.R. at 252 the court indicated that the mortgagee in Nobelman, American Savings Bank, had a claim on the Nobelman's condominium, and the Nobelman’s deed of trust to the Bank provided for an additional security interest in: .67 percent interest in the common areas of the condominium complex, escrow funds, proceeds of hazard insurance, together with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, rents .., royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust. (Emphasis added.) The issue of this “additional security” was not decided by the Supreme Court in Nobelman. In re French, 174 B.R. at 4; see also In re Hammond, 27 F.3d at 57 (where the Third Circuit expressly found that): The Supreme Court’s failure to address the effect of the additional security interest in the Nobelman mortgage does not imply that the Supreme Court held that section 1322(b)(2) prohibits bifurcation of residential mortgages that also give the mortgagee a lien on personal property used in or about the residence. . See In re French, 174 B.R. at 4, indicating that the \" ‘boilerplate’ case law is hopelessly irreconcilable because Congress did not contemplate that the intensely technological language of mortgage instruments would be tested against the simple but precise language of § 1322(b)(2).” . It is interesting to note that during the course of this analysis, this court reviewed no less than 20 cases dealing with the issue of additional collateral and the anti-modification provision of section 1322(b)(2). Of those 20 cases, 15 were from the bankruptcy courts of the Eastern, Western and Middle Districts of Pennsylvania. . In" } ]

[ { "docid": "23279725", "title": "", "text": "sale under Louisiana law and, Orleans, as vendor, retained in law what it recited it had in the chattel mortgage: a vendor’s privilege for the remainder of the purchase price when it assigned the note to Colonial. Colonial acquired the privilege as an accessory of the debt. L.S.A.-C.C. art. 2645; Perkins v. Gumbel, 1897, 49 La.Ann. 653, 21 So. 743; Succession of Forstall, 1887, 39 La.Ann. 1052, 3 So. 277; National Collection Serv., Inc. v. Woodward, La.App. 2 Cir. 1959, 111 So. 2d 189. Louisiana law of course determines only whether a security interest arose; for purposes of applying Truth in Lending we must characterize the transaction as prescribed by Regulation Z. Section 226.8(b)(5) of Regulation Z requires disclosure of “any security interest” retained by the creditor, and section 226.2(z) includes within the definition of security interest “any interest in property which secures payment . . . of an obligation. The terms include . vendor’s liens in . personal property. . . . ” This embraces a vendor’s privilege of the kind that arose here. . Liability for failure to disclose a statutory lien attaches alike to the creditor and the arranger for the extension of credit who have participated in the making of a joint disclosure. 12 C.F.R. § 226.6(d). Therefore, Orleans and Colonial must each bear the responsibility for this omission. It makes no difference that this error was unintentional and made without wilful purpose to mislead. Although these factors might have some weight were we faced with possible criminal penalties under the Act (28 U.S.C. § 1611), the reference to “unintentional error” in section 1640(c) has been held to apply only to clerical error. Palmer v. Wilson, N.D.Cal.1973, 359 F.Supp. 1099; Douglas v. Beneficial Finance Co., D. Alaska 1971, 334 F.Supp. 1166; Buford v. American Finance Co., N.D.Ga.1971, 333 F.Supp. 1243; Ratner v. Chemical Bank New York Trust Co., S.D.N.Y. 1971, 329 F.Supp. 270. But see Thrift Funds of Baton Rouge, Inc. v. Jones, La.1973, 274 So.2d 150 (good faith misinterpretation of state law, not the Truth in Lending Act). We are asked to view the requirements" } ]

[ { "docid": "23112116", "title": "", "text": "fide error defense of 15 U.S.C.A. § 1640(c). See note 3 supra. King misconceives the nature of this defense. Section 1640(c) does not excuse unintentional violations that result from mistaken legal conclusions concerning the requirements of the Act and Regulation Z; rather, the defense is only available for clerical errors which occur despite a system for correcting them. Ives v. W. T. Grant Co., 522 F.2d 749 (2d Cir. 1975); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161 (7th Cir. 1974); Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974); see Turner v. Firestone Tire & Rub ber Co., 537 F.2d 1296 (5th Cir. 1976) (referring to § 1640(c) as the “clerical error defense”). We expressly refuse to follow Welmaker v. W. T. Grant Co., 365 F.Supp. 531 (N.D.Ga.1972), which held to the contrary. The omission of the “deferred payment price” from King’s standard disclosure form was not the result of a clerical error, so § 1640(c) is inapplicable. Nor can King benefit from the 15 U.S.C.A. § 1640(f) defense with respect to its failure to disclose the “deferred payment price.” Section 1640(f) gives a defense for good faith compliance with any rule, regulation, or interpretation thereof by the Federal Reserve Board. The attorneys who prepared the form that King used relied extensively on the Federal Reserve Board’s 1969 pamphlet entitled “What You Ought to Know About Federal Reserve Regulation Z.” The model form in that pamphlet contained an entry “deferred payment price,” however, so the drafting attorneys could not have relied on that pamphlet in omitting such an entry in the form used by King. Since 12 C.F.R. § 226.8(c)(8)(ii) is within the scope of the Board’s statutory authority and since King has no valid defense to its failure to comply with the regulation, McGowan is entitled to recover the § 1640(a)(2) civil penalty of twice the amount of the finance charge, or $218.02. In addition, McGowan is entitled to the costs of the action and a reasonable attorney’s fee as determined by the district court. 15 U.S.C.A. § 1640(a)(3). The amount of the fee should be determined" }, { "docid": "22575416", "title": "", "text": "were permitted by law, it did not address the applicability of the bona fide error defense here. Johnson argues that the bona fide error defense does not apply here because a debt collector’s mistake of law cannot be a bona fide error. We disagree for the reasons below, and accordingly we remand for the district court to consider in the first instance whether Riddle is entitled to the defense. This circuit has never addressed whether the FDCPA bona fide error defense can apply to a mistake of law which resulted in an attempt to collect amounts not permitted by law. Two district court opinions in this circuit have addressed this issue, each concluding that the bona fide error defense is limited to clerical errors. Scott, No. 2:99 CV 00042, slip op. at 3; Martinez v. Albuquerque Collection Servs., 867 F.Supp. 1495, 1502-03 (D.N.M.1994). Outside this circuit, federal courts have split on the issue, with a majority concluding that the defense is limited to clerical errors and cannot protect mistakes of law, but a growing minority of courts reaching the contrary conclusion. Many other courts, although not squarely addressing the clerical/legal mistake issue, have stated that the FDCPA is a strict liability statute. Of the cases which hold that the defense does not apply to mistakes of law, almost all dispense with the issue by citing earlier cases back to the Ninth Circuit’s decision in Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir.1982). Baker rested its holding entirely upon the similarity of the FDCPA bona fide error defense to the “nearly identical” bona fide error defense provided in the Truth in Lending Act (TILA), 15 U.S.C. § 1640, a provision uniformly interpreted to apply only to clerical errors and not to legal errors. Baker, 677 F.2d at 779. However, the TILA analogy is faulty, as the Seventh Circuit has explained: [The plaintiff] also analogizes the provision to a similar section in [TILA], 15 U.S.C. § 1640(c), which is limited to clerical mistakes and which does not include errors of judgment or law. But ... the TILA bona fide" }, { "docid": "5658779", "title": "", "text": "including “clerical, calculation, computer malfunction and programming, and printing errors.” Id. By contrast, the FDCPA’s provision does not expressly remove legal mistakes from the realm of errors that can be considered bona fide, nor does it in any other way illustrate what types of mistakes can or cannot be deemed bona fide. Noting the distinction between the two statutory provisions, “a growing minority” of courts, Johnson, 305 F.3d at 631, including the Tenth Circuit, have concluded that mistakes of law can be considered bona fide errors under section 1692k(c). id. at 631-32 & n. 14 (so holding and collecting cases). Our own opinion in Jenkins v. Heintz, 124 F.3d 824, 832 n. 7 (7th Cir.1997), cert. denied, 523 U.S. 1022, 118 S.Ct. 1304, 140 L.Ed.2d 469 (1998), likewise notes that nothing in the language of the FDCPA bona fide error provision limits the reach of the defense to clerical errors and other mistakes not involving the exercise of legal judgment. Yet, as Jenkins itself pointed out, there was no evidence that the mistake at issue in that case actually had involved the exercise of any legal judgment. Id. at 832. Consequently, we did not have occasion to further illuminate whether and when legal errors constitute bona fide errors under section 1692k(c). Assuming, consistent with our observations in Jenkins, that a legal mistake can qualify as a bona fide error under the FDCPA, a second question presents itself. Section 1692k(c) requires the debt collector to prove, inter alia, that its violation of the FDCPA “was not intentional.” In this respect, the bona fide error provisions of TILA and the FDCPA are virtually identical; TILA too requires proof that “the violation was not intentional.” 15 U.S.C. § 1640(c). In Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1166-67 (7th Cir.1974), we held that the relevant intent was the defendant’s intent to commit the act determined to be a violation of TILA, not an intent to commit a violation of the statute. Thus, so long as the act found to be a violation of TILA is deliberate, the bona fide error defense" }, { "docid": "4102063", "title": "", "text": "to violate the Act, and whether the Act applies to legal errors. See e.g., Frye v. Bowman, Heintz, Boscia, and Vician, 193 F.Supp.2d 1070, 1084-1087 (S.D.Ind.2002) (discussing and linking the issues). If the statute covers clerical errors, then the relevant intent must be the intent to commit the act that violates the FDCPA. If the statute covers legal errors, however, the relevant intent must be the intent to violate the FDCPA. Most courts facing this issue have decided that the bona fide error defense doesn’t include legal errors. Johnson v. Riddle, 305 F.3d 1107, 1123 (10th Cir.2002) (making this observation). Many, if not all, of the opinions in the majority find their intellectual roots in Baker v. G.C. Serv. Corp., 677 F.2d 775, 779 (9th Cir.1982), which excluded legal errors because of what it saw as the identity between the bona fide error defense in the FDCPA and the bona fide error defense in the Truth in Lending Act (TILA), which had, and has, been uniformly interpreted to apply only to clerical errors. Id. Baker seems to overstate the similarity between the TILA and the FDCPA. The TILA defines bona fide errors as including, but not limited to, “clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.” 15 U.S.C. § 1640(c). The FDCPA contains no such provision. Jenkins v. Heintz, 124 F.3d 824, 832 n. 7 (7th Cir.1997) (commenting on the scope of the defense without deciding the matter). To the contrary, by allowing for any “bona fide error,” the plain language of the FDCPA allows for legal errors. A number of courts have reached the same conclusion. Johnson v. Riddle, 305 F.3d at 1121, 1123 (collecting cases and holding that the FDCPA applies to legal errors). The Supreme Court’s reflections in Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995), buoy this conclusion. Johnson v. Riddle, 305 F.3d at 1123 (making this point). Heintz addressed whether the FDCPA covers litigation activity. A unanimous" }, { "docid": "19053464", "title": "", "text": "v. First Interstate Bank, N.A, 511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994). Second, and more importantly, as these securities law cases themselves suggest, when attempting to discern the common law, it can be misleading to analogize from statutory law. The Court will explain this second point further. Prior to Central Bank, the Supreme Court had held that the proper standard for recovery under § 10(b) is a preponderance of the evidence, rejecting the Fifth Circuit’s holding that since § 10(b) violations essentially amount to fraud, they must be proven by clear and convincing evidence. See Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983). In reaching that conclusion, the Fifth Circuit had reasoned from the common-law requirement that civil fraud be proven by the heightened evidentiary standard. See Huddleston v. Herman & MacLean, 640 F.2d 534, 545-46 (5th Cir.1981). Justice Marshall, writing for the Court, rejected the Fifth Circuit’s analogy: [T]he antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud. Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry. We therefore find reference to the common law in this instance unavailing. 459 U.S. at 388-89, 103 S.Ct. 683. Justice Marshall explained further that “[w]here Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, we must prescribe one,” id. at 389, 103 S.Ct. 683, and concluded that “[a] preponderance-of-the-evidence standard allows both parties to ‘share the risk of error in roughly equal fashion.’” Id. at 390, 103 S.Ct. 683 (citation omitted). Many state courts, in supplying the standard of proof necessary to establish violations of their own securities fraud statutes, have followed the lead of the Supreme Court in Huddleston by holding that securities fraud — and, where available, the aiding and abetting thereof— need only be proven by a preponderance of the evidence. See, e.g., State ex rel. Goettsch v. Diacide Distributors, Inc., 561 N.W.2d 369," }, { "docid": "9435354", "title": "", "text": "the Credit Repair Organizations Act, 15 U.S.C. §§ 1679-1679j; the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x; the Equal Credit Opportunity Act, 15 U.S.C. §§ 1691-169If; and the Electronic Funds Transfer Act, 15 U.S.C. §§ 1693-1693r. Rouse v. Law Offices of Rory Clark, 603 F.3d 699, 706 (9th Cir.2010). Many of the provisions within the Consumer Credit Protection Act overlap, relying upon each other as well as agency regulations promulgated to implement them. Indeed, Judge Kleinfeld recently referred to this series of statutes as being \"like Russian matryoshka dolls, stacked one within another.” Edwards v. Wells Fargo & Co., 606 F.3d 555, 557 n. 7 (9th Cir.2010). . Chase largely relies on cases applying § 1640(g) to multiple violations of the .TILA, again suggesting that the FCBA and the TILA are indistinguishable. See, e.g., Jackson v. Columbus Dodge, Inc., 676 F.2d 120, 121 (5th Cir.1982); Turner v. Firestone Tire & Rubber Co., 537 F.2d 1296, 1297-98 (5th Cir.1976); Tinsman v. Moline Beneficial Fin. Co., 531 F.2d 815, 819 (7th Cir.1976). For the reasons discussed, these TILA cases are inapposite to a determination of whether § 1640(g) applies • to multiple violations of the FCBA. .The parties have identified three out-of-circuit district court cases that have addressed the application of § 1640(g) to violations of the FCBA. See Belmont v. Assocs. Natl Bank (Del.), 219 F.Supp.2d 340, 343-46 (E.D.N.Y. 2002) (finding that § 1640(g) did not apply to FCBA violations under § 1666 and § 1666a); Tweedy v. RCAM Title Loans, LLC, 611 F.Supp.2d 603, 606-607 (W.D.Va.2009) (finding that § 1640(g) did apply to FCBA violations under § 1666b(a)); Gengov. Target Nat’l Bank, No. H-06-340 (S.D.Texas Jun. 13, 2007) (unpub.) (finding that § 1640(g) did apply to multiple undefined FCBA violations, which the district court characterized as \"failing to respond to billing error notices”). The district court in Belmont suggested that its analysis conflicts with the circuit decisions in Murray v. Amoco Oil Co., 539 F.2d 1385, 1387 n. 4 (5th Cir.1976) (per curiam) and Strange v. Monogram Credit Card Bank, 129 F.3d 943, 947 (7th Cir.1997). These cases are" }, { "docid": "23112115", "title": "", "text": "scope of the Board’s broad authority to enhance informed credit usage. That Congress did not specify the “deferred payment price” concept in 15 U.S.C.A. § 1638(a) does not invalidate the regulation requiring its disclosure. This disclosure requirement is not inconsistent with the statutory scheme, and to limit the Board’s authority to require only those disclosures which Congress has expressed “would undermine the flexibility sought in vesting broad rule-making authority in an administrative agency.” See Mourning v. Family Publications Service, Inc., 411 U.S. 356, 372, 93 S.Ct. 1652, 1662, 36 L.Ed.2d 318 (1973) (upholding the “Four Installment Rule” portion of Regulation Z against an attack that the Board had exceeded its authority). Disclosure of the “deferred payment price” is reasonably related to the goal of the Act, and the Board was within its statutory authority in mandating such disclosure. King next argues that even if it did violate Regulation Z, its good faith attempt to comply with the law by relying on counsel in drafting its contract and disclosure forms brings it within the unintentional, bona fide error defense of 15 U.S.C.A. § 1640(c). See note 3 supra. King misconceives the nature of this defense. Section 1640(c) does not excuse unintentional violations that result from mistaken legal conclusions concerning the requirements of the Act and Regulation Z; rather, the defense is only available for clerical errors which occur despite a system for correcting them. Ives v. W. T. Grant Co., 522 F.2d 749 (2d Cir. 1975); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161 (7th Cir. 1974); Palmer v. Wilson, 502 F.2d 860 (9th Cir. 1974); see Turner v. Firestone Tire & Rub ber Co., 537 F.2d 1296 (5th Cir. 1976) (referring to § 1640(c) as the “clerical error defense”). We expressly refuse to follow Welmaker v. W. T. Grant Co., 365 F.Supp. 531 (N.D.Ga.1972), which held to the contrary. The omission of the “deferred payment price” from King’s standard disclosure form was not the result of a clerical error, so § 1640(c) is inapplicable. Nor can King benefit from the 15 U.S.C.A. § 1640(f) defense with respect to its" }, { "docid": "22123547", "title": "", "text": "SEC’s authority to issue Rule 10b-16 derives from an entirely different statute, section 10(b) of the Exchange Act. See Abeles v. Oppenheimer & Co., Inc., 597 F.Supp. 532 at 535 (N.D.Ill.1983). Both Congress and the SEC recognized that agency authority to promulgate the desired regulation would come from the Exchange Act, not the TILA. See note 3 supra. Therefore, we will not rely upon statements made by the 1968 Congress that passed the TILA in evaluating what the 1934 Congress intended. The underlying statute and the language from which a private right of action must be implied is section 10(b). Abeles, 597 F.Supp. at 536. 2. Section 10(b) Provides an Implied Remedy Section 10(b) makes it “unlawful for any person ... (b) To use or employ, in connection, with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors. 15 U.S.C. § 78j(b) (1976). The existence of a private right of action for violations of this subsection is well-established. See, e.g., Herman & MacLean v. Huddleston, 459 U.S. 375, 381 n. 10, 103 S.Ct. 683, 687 n. 10, 74 L.Ed.2d 548 (1983); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196, 96 S.Ct. 1375, 1382, 47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 1922, 44 L.Ed.2d 539 (1975); Superintendent of Ins. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n. 9, 92 S.Ct. 165, 169 n. 9, 30 L.Ed.2d 128 (1971) (“It is now established that a private cause of action is implied under § 10(b).”). The availability of this implied remedy is “simply beyond perad venture.” Huddleston, 459 U.S. at 380, 103 S.Ct. at 687. 3. Congress Delegated Authority to Establish Rules To complete the first step in our inquiry under Jablon, supra, we merely need to verify that Congress authorized the implementation of the" }, { "docid": "8935954", "title": "", "text": "who did not even work in the “post closing department” that would have been responsible for such corrections; and (5) the Defendant’s contention that it promptly corrected the “error” at hand solely applies to the correction of disclosure statements, not to changes in the terms of the transaction obtained. We find that the Debtor’s position with respect to the remedies requested is correct. The law clearly holds that TILA must be strictly construed, and that liability must be imposed for any TILA violation, no matter how technical. Thomka, supra, 619 F.2d at 248-50. See also Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir.1976); Norris, supra, 138 B.R. at 471-72; Lauletta v. Valley Buick, Inc., 421 F.Supp. 1036, 1040 (W.D.Pa.1976); and In re McElvany, 98 B.R. 237, 240 (Bankr.W.D.Pa.1989). Statutory damages are awarded in any case in which the creditor violates the specified provisions of the Act, regardless of whether the creditor’s conduct was intentional, negligent, or inadvertent. Newton v. United Companies Financial Corp., 24 F.Supp.2d 444, 451 (E.D.Pa.1998). See also Porter, supra, 961 F.2d at 1069; Smith, supra, 898 F.2d at 903; and Thomka, supra, 619 F.2d at 249-50. This strict liability in favor of consumers subjected to TILA violations is released only in narrow circumstances, strictly construed. The limited nature of the § 1640(c) defense is addressed at some length in Thomka, supra, when that court states as follows, 619 F.2d at 250-51: The bona fide error defense of Section 1640(c) requires the creditor to show “by a preponderance of the evidence” that the violation “was not intentional, and resulted from a bona fide error;” and second, that it occurred “notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” However, the first part of the defense that a “bona fide error” occurred has been interpreted to require a showing that the error was merely clerical. See, e.g., McGowan v. King, Inc., 569 F.2d 845, 849 (5th Cir.1978); Ives v. W.T. Grant Co., 522 F.2d 749, 757-58 (2d Cir.1975); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161,1167 (7th Cir.1974); Ratner v. Chemical Bank, 329" }, { "docid": "22598416", "title": "", "text": "violation of this part if the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. Grants argues that in using the term “amount financed” it relied on a Board pamphlet entitled “What you ought to know about Truth in Lending. Therefore, Grants claims the benefit of section 1640(c) as a defense. See Welmaker v. W. T. Grant Co., supra, 365 F.Supp. at 540-45, where Grants prevailed on this very issue. But see Johnson v. Associates Finance, Inc., 369 F.Supp. 1121, 1123-24 (S.D.Ill.1974), and Scott v. Liberty Finance Co., 380 F.Supp. 475, 479 (D.Neb.1974), where other defendants’ reliance on the same pamphlet was to no avail. The “unintentional violation” provision has been the subject of substantial litigation and two different analyses have emerged. Welmaker v. W. T. Grant Co., supra; Rolader v. Georgia Power Co., 4 CCH Consumer Credit Guide 198, 684 (N.D.Ga.1974); Thrift Funds of Baton Rouge, Inc. v. Jones, 274 So.2d 150, 161 (Sup.Ct.La.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); Richardson v. Time Premium Co., CCH Consumer Credit Guide 199, 272 (1969-1973 Transfer Binder) (S.D.Fla. 1971), have held that good faith efforts to comply with the legal requirements of the statute will excuse unintentional violations. Thus, Grants demands that it at least be granted a hearing on its good faith attempt to follow the law. Plaintiffs dispute the bona fides of Grants’ good faith efforts, noting that both the term “amount financed” and the term “unpaid balance” are required by Conn.Reg. § 36-395-7(c)(5), cf. 12 C.F.R. § 226.8(c)(5), and Conn.Reg. § 36-395-7(c)(7), cf. 12 C.F.R. § 226.8(c)(7). Plaintiffs also rely on another line of cases, all of which follow the reasoning of Ratner v. Chemical Bank New York Trust Co., supra, 329 F.Supp. at 281-82 & n. 17, in holding that the “unintentional violation” defense applies only to clerical errors of a sort that might occur in billing or in making mathematical calculations despite established “procedures reasonably adapted to avoid" }, { "docid": "22575418", "title": "", "text": "error provision expressly defined bona fide errors as [including, but not limited to,] “clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.” 15 U.S.C. § 1640(c). The FDCPA provision does no such thing. This, along with the statutes’ different purposes, distinguishes the two. Jenkins v. Heintz, 124 F.3d 824, 832 n. 7 (7th Cir.1997). Unlike TILA, the plain language of the FDCPA suggests no intent to limit the bona fide error defense to clerical errors. To the contrary, § 1692k(c) refers by its terms to any “error” that is “bona fide.” We find no indication in the legislative history that Congress intended this broad language to mean anything other than what it says. Indeed, to the extent that the legislative history speaks to this issue, it suggests that the narrow reading advocated by Johnson is incorrect. In describing the bona fide error exception, the Senate Report stated: “A debt collector has no liability, however, if he violates the act in any manner, including with regard to the act’s coverage, when such violation is unintentional and occurred despite procedures designed to avoid such violations.” S.Rep. No. 95-382, at 5. Our conclusion is bolstered by the Supreme Court’s reasoning in Heintz, 514 U.S. at 295, 115 S.Ct. 1489. Prior to Heintz, the Sixth Circuit had held (incorrectly, in light of Heintz) that lawyers áre not debt collectors for FDCPA purposes. Green v. Hocking, 9 F.3d 18, 21 (6th Cir. 1993). The Sixth Circuit’s holding was based in part on its view that any other rule “automatically would make liable any litigating lawyer who brought, and then lost, a claim against a debtor.” Heintz, 514 U.S. at 295, 115 S.Ct. 1489 (citing Green 9 F.3d at 21); see also Taylor v. Luper, Sheriff & Niedenthal Co., 74 F.Supp.2d 761, 764 (S.D.Ohio 1999) (noting that, if mistakes of law were not protected by the bona fide error defense, state ethical duty of zealous advocacy could require debt collecting lawyer to assert claims" }, { "docid": "13398044", "title": "", "text": "the bringing of it ‘an action that cannot legally be taken.’ ” Id. at 296, 115 S.Ct. 1489. This narrow finding does not support Defendants’ expansive interpretation to establish a defense of mistake of law or good faith rebanee on the advice of counsel. Numerous district courts have unmistakably rejected the advice-of-counsel defense asserted by Defendants. The Ninth Circuit has emphatically concurred in the Baker case. The court reasoned that if the actions undertaken were intentional, it was no defense that the debt collector relied on a mistake of law, even in good faith. “Reliance on advice of counsel or a mistake about the law is insufficient by itself to raise the bona fide error defense. Section 1692k(c) does not immunize mistakes of law, even if properly proven.” Appellant only presented evidence that, at best, might show it had been mistaken about the law. This is insufficient by itself to support the bona fide error defense pursuant to 15 U.S.C. section 1692k(c). Section 1692k(c) of the Act is nearly identical to the bona fide error defense section under the Truth in Lending Act (TILA), 15 U.S.C. section 1640(c). It has been uniformly held that unintentional “clerical errors ... are the only violations this section (of the TILA) was designed to excuse.” (reliance on advice of counsel insufficient to support defense of bona fide error);( § 1640(c) called “the clerical error defense”); In a case in which the defendant similarly contended that an error of law was not intentional within the meaning of § 1640(c), the court stated: “It is undisputed that defendant carefully, dehberately-intentionally- omitted the disclosure in question. That defendant ... mistook the law does not make its action any less intentional.” Appellant only presented evidence that, at best, might show it had been mistaken about the law. This is insufficient by itself to support the bona fide error defense pursuant to 15 U.S.C. section 1692k(c). Therefore, we affirm the district court’s conclusion that the defense was unavailing. Baker, 677 F.2d at 779-780 (internal citations omitted). As a matter of law, this part of Defendants’ opposition fails. 4) Defendants" }, { "docid": "17215685", "title": "", "text": "99 S.Ct. 1946, 1968, 60 L.Ed.2d 560 (1979) (Rehnquist, J., concurring) (emphasis deleted). Thus, if Congress considered the question in 1977 when it amended the Williams Act, it is arguable that the state of the law they saw was one in which the courts had used and would continue to use their judgment to determine whether and under what circumstances there was an implied private right of action under section 13(d). . The Curran court also found evidence in the legislative history that it was the intent of Congress to preserve a private right of action under the statute. . See e.g., GAF Corp. v. Milstein, 453 F.2d 709 (2d Cir.1971), cert. denied 406 U.S. 910, 92 S.Ct. 1610, 31 L.Ed.2d 821 (1972); General Aircraft Corp. v. Lampert, 556 F.2d 90, 94 n. 5 (1st Cir.1977); Missouri Portland Cement Co. v. H.K. Porter Co., 535 F.2d 388 (8th Cir.1976); Stecher-Traung-Schmidt Corp. v. Self, 529 F.2d 567 (2d Cir.1976); Corenco Corp. v. Schiavone & Sons, Inc., 488 F.2d 207 (2d Cir.1973); Bath Industries, Inc. v. Blot, 427 F.2d 97 (7th Cir.1970); Susquehanna Corp. v. Pan American Sulphur Co., 423 F.2d 1075 (5th Cir.1970). . S. 425 was a predecessor to S. 305, the actual bill passed. One section of S. 425 which was not adopted would have amended section 13(f) of the Exchange Act to prohibit foreign investors from acquiring more than 5% of an issuer’s shares without giving prior notification, and would have given substantive authority to the President of the United States to prohibit such potential acquisitions. S. 425, 94th Cong., 1st Sess. (1975). . In his dissenting opinion, Judge Vance cites Herman & MacLean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983), infra dissent at 571 of 734 F.2d, as support for his alternative view of how Curran applies to the case sub judice. In Huddleston the Court, relying on Curran, held that \"Congress’ decision [in 1975] to leave Section 10(b) intact suggests that Congress ratified the cumulative nature of the Section 10(b) action.” 103 S.Ct. at 689. Huddleston, however, more properly supports the" }, { "docid": "11340973", "title": "", "text": "fide error defense was the avenue through which the Supreme Court applied the act to lawyers conducting litigation while avoiding the problem the Sixth Circuit identified in Green. Plaintiffs cite a number of cases in which courts have held that the bona fide error defense does not apply to mistakes of law. However, in these cases, the mistake of law asserted as a defense was a mistake as to the applicability of the Act itself. See e.g. Baker v. G.C. Services Corp., 677 F.2d 775, 778-79 (9th Cir.1982) (debt collector mistaken about FDCPA requirement that debtor receive written notice of right to dispute debt); Hulshizer v. Global Credit Services, Inc., 728 F.2d 1037, 1038 (8th Cir.1984) (debt collector mistaken about FDCPA requirement to disclose that he is attempting to collect a debt); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 26-27 (2d Cir.1989) (debt collector mistaken about FDCPA requirement to disclose that he is attempting to collect a debt). Here, the .mistake of law relied upon to invoke the bona fide error defense was not a mistake about the requirements of the FDCPA itself. It was instead a mistake about whether the collection of a certain fee, charge or expense incidental to the principal obligation, attorneys fees, was permitted under the law of the state of Ohio. There is nothing in the language of 15 U.S.C. § 1692k(c) which limits its application to clerical mistakes or ministerial errors. The Truth in Lending Act (“TILA”), 15 U.S.C. § 1640(c), incorporates a somewhat similar bona fide error defense but it contains additional language which is not present in 15 U.S.C. § 1692k(c). Section 1640(c) provides in part: Examples of a bona fide error include, but are not limited to, clerical, calculation, computer malfunction and programming, and printing errors[.] The absence of such language in 15 U.S.C. § 1692k(c) suggests that, in the case of the FDCPA, Congress did not intend to limit the defense to clerical errors. See Jenkins v. Heintz, 124 F.3d 824, 832, n. 7 (7th Cir.1997). The court concludes that the bona fide error defense includes errors" }, { "docid": "5658777", "title": "", "text": "the FDCPA, if any, was unintentional and resulted from a bona fide error in its efforts to comply with the statute and the cases interpreting it. Further, Household hired an independent and reputable attorney, knowing that he attended seminars on the FDCPA, subscribed to and read materials to keep abreast of FDCPA developments, and trained his employees with internal compliance manuals. Dickerson represented that the system he put in place was in full compliance with the FDCPA, and the detailed procedures he used — including a three-part review process, checks against databases, additional verification, and follow-up debtor communications — gave every appearance of being ... in compliance. Appellants’ Opening Br. at 35-36. In granting summary judgment in favor of the plaintiff class, the district court did not address Household’s invocation of section 1692k(e). Nielsen contends that Household is foreclosed from asserting a bona fide error defense because the mistake that Household and Dickerson made was one of legal interpretation; in Nielsen’s view, the statute does not immunize defendants for mistakes of law. There is a split of authority among the circuits as to whether the bona fide error defense applies to mistakes of law. The majority view is that the defense is only available for clerical and factual errors. See, e.g., Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451-52 (8th Cir.2001); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2nd Cir.1989); Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir.1982); see also Johnson v. Riddle, 305 F.3d 1107, 1121-22 n. 14 (10th Cir.2002) (collecting cases). The Ninth Circuit’s opinion in Baker, the first appellate precedent on this point, looked principally to the cases that had uniformly construed the Truth-in-Lending Act’s (“TILA”) bona fide error provision, 15 U.S.C. § 1640(c), not to immunize legal errors. 677 F.2d at 779. The TILA provision, however, expressly states that “an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.” § 1640(c) (emphasis supplied). It also includes an illustrative list of errors that would constitute bona fide errors," }, { "docid": "13398045", "title": "", "text": "defense section under the Truth in Lending Act (TILA), 15 U.S.C. section 1640(c). It has been uniformly held that unintentional “clerical errors ... are the only violations this section (of the TILA) was designed to excuse.” (reliance on advice of counsel insufficient to support defense of bona fide error);( § 1640(c) called “the clerical error defense”); In a case in which the defendant similarly contended that an error of law was not intentional within the meaning of § 1640(c), the court stated: “It is undisputed that defendant carefully, dehberately-intentionally- omitted the disclosure in question. That defendant ... mistook the law does not make its action any less intentional.” Appellant only presented evidence that, at best, might show it had been mistaken about the law. This is insufficient by itself to support the bona fide error defense pursuant to 15 U.S.C. section 1692k(c). Therefore, we affirm the district court’s conclusion that the defense was unavailing. Baker, 677 F.2d at 779-780 (internal citations omitted). As a matter of law, this part of Defendants’ opposition fails. 4) Defendants also contend that Plaintiffs are obliged to show proximate cause and actual damages greater than the $25 service charge authorized by present California state law, although this charge was not authorized at the time of many of the alleged violations. Once again Defendants misread the law. The Ninth Circuit has plainly ruled that an award of statutory damages is not contingent on a finding of actual damages and that public policy precludes making an award dependent on a showing of actual damages. It follows that the elimination of a requirement to prove actual damages means there is no need to prove proximate cause for such damages. The FDCPA is a strict liability statute. Violation equals liability. “Policy also supports the award of statutory damages without proof of actual damages. The only actual damages that a plaintiff would be likely to incur would be for emotional distress caused by abusive debt collection practices and, unless the violations are extreme and outrageous, traditional stringent evidentiary hurdles would be difficult to overcome.” Baker, 677 F.2d at 780. This" }, { "docid": "5658780", "title": "", "text": "in that case actually had involved the exercise of any legal judgment. Id. at 832. Consequently, we did not have occasion to further illuminate whether and when legal errors constitute bona fide errors under section 1692k(c). Assuming, consistent with our observations in Jenkins, that a legal mistake can qualify as a bona fide error under the FDCPA, a second question presents itself. Section 1692k(c) requires the debt collector to prove, inter alia, that its violation of the FDCPA “was not intentional.” In this respect, the bona fide error provisions of TILA and the FDCPA are virtually identical; TILA too requires proof that “the violation was not intentional.” 15 U.S.C. § 1640(c). In Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1166-67 (7th Cir.1974), we held that the relevant intent was the defendant’s intent to commit the act determined to be a violation of TILA, not an intent to commit a violation of the statute. Thus, so long as the act found to be a violation of TILA is deliberate, the bona fide error defense is unavailable. Id. If the same holds true for the FDCPA, the bona fide error defense would likewise be unavailable to Household: Household’s actions were not inadvertent; rather, it intended to use Dickerson in the very manner that we have found to violate the FDCPA. See id. Whether or not the FDCPA’s bona fide error provision should be interpreted in this manner is open to debate, however. The Sixth Circuit has concluded that a debt collector may avoid liability via the bona fide error defense by showing that it did not intend to violate the statute: “The debt collector must only show that the violation was unintentional, not that the communication itself was unintentional.” Lewis v. ACB Bus. Servs. Inc., 135 F.3d 389, 402 (6th Cir.1998). And, as Judge Tinder has pointed out, although the pertinent language of the two statutes is the same, there are other differences between them that may support differing constructions. See Frye v. Bowman, Heintz, Boscia & Vician, P.C., 193 F.Supp.2d 1070, 1087-88 (S.D.Ind.2002). This question, which the parties have" }, { "docid": "22201270", "title": "", "text": "the contents of the letter [containing the disputed language]. Defendant’s attorneys have, from time to time, met with the staff of the Federal Trade Commission to discuss compliance with the Act.” Reliance on advice of counsel or a mistake about the law is insufficient by itself to raise the bona fide error defense. “§ 1692k(c) does not immunize mistakes of law, even if properly proven.” Rutyna v. Collection Accounts Terminal, Inc., 478 F.Supp. 980, 982 (N.D.Ill.1979). Section 1692k(c) of the Act is nearly identical to the bona fide error defense section under the Truth in Lending Act (TILA), 15 U.S.C. § 1640(c). Carrigan v. Central Adjustment Bureau, Inc., 494 F.Supp. 824, 827 (N.D.Ga.1980). It has been uniformly held that unintentional “clerical errors .. . are the only violations this section [of the TILA] was designed to excuse.” Palmer v. Wilson, 502 F.2d 860, 861 (9th Cir. 1974); Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1167 (7th Cir. 1974) (reliance on advice of counsel insufficient to support defense of bona fide error); Turner v. Firestone Tire & Rubber Co., 537 F.2d 1296, 1298 (5th Cir. 1976) (§ 1640(c) called “the clerical error defense”); Ratner v. Chemical Bank New York Trust Co., 329 F.Supp. 270, 281 (S.D.N.Y.1971); Buford v. American Finance Co., 333 F.Supp. 1243, 1248 (N.D.Ga. 1971). In Ratner v. Chemical Bank New York Trust Co., supra, a case in which the defendant similarly contended that an error of law was not intentional within the meaning of § 1640(c), the court stated: “It is undisputed that defendant carefully, deliberately — intentionally — omitted the disclosure in question. That defendant ... mistook the law does not make its action any less intentional.” Id. at 281. Appellant only presented evidence that, at best, might show it had been mistaken about the law. This is insufficient by itself to support the bona fide error defense pursuant to 15 U.S.C. § 1692k(e). There fore, we affirm the district court’s conclusion that the defense was unavailing. VII. The civil liability section of the Act provides: “(a) Except as otherwise provided by this section, any" }, { "docid": "22575417", "title": "", "text": "of courts reaching the contrary conclusion. Many other courts, although not squarely addressing the clerical/legal mistake issue, have stated that the FDCPA is a strict liability statute. Of the cases which hold that the defense does not apply to mistakes of law, almost all dispense with the issue by citing earlier cases back to the Ninth Circuit’s decision in Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir.1982). Baker rested its holding entirely upon the similarity of the FDCPA bona fide error defense to the “nearly identical” bona fide error defense provided in the Truth in Lending Act (TILA), 15 U.S.C. § 1640, a provision uniformly interpreted to apply only to clerical errors and not to legal errors. Baker, 677 F.2d at 779. However, the TILA analogy is faulty, as the Seventh Circuit has explained: [The plaintiff] also analogizes the provision to a similar section in [TILA], 15 U.S.C. § 1640(c), which is limited to clerical mistakes and which does not include errors of judgment or law. But ... the TILA bona fide error provision expressly defined bona fide errors as [including, but not limited to,] “clerical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.” 15 U.S.C. § 1640(c). The FDCPA provision does no such thing. This, along with the statutes’ different purposes, distinguishes the two. Jenkins v. Heintz, 124 F.3d 824, 832 n. 7 (7th Cir.1997). Unlike TILA, the plain language of the FDCPA suggests no intent to limit the bona fide error defense to clerical errors. To the contrary, § 1692k(c) refers by its terms to any “error” that is “bona fide.” We find no indication in the legislative history that Congress intended this broad language to mean anything other than what it says. Indeed, to the extent that the legislative history speaks to this issue, it suggests that the narrow reading advocated by Johnson is incorrect. In describing the bona fide error exception, the Senate Report stated: “A debt collector has no liability," }, { "docid": "5658778", "title": "", "text": "split of authority among the circuits as to whether the bona fide error defense applies to mistakes of law. The majority view is that the defense is only available for clerical and factual errors. See, e.g., Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 451-52 (8th Cir.2001); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2nd Cir.1989); Baker v. G.C. Servs. Corp., 677 F.2d 775, 779 (9th Cir.1982); see also Johnson v. Riddle, 305 F.3d 1107, 1121-22 n. 14 (10th Cir.2002) (collecting cases). The Ninth Circuit’s opinion in Baker, the first appellate precedent on this point, looked principally to the cases that had uniformly construed the Truth-in-Lending Act’s (“TILA”) bona fide error provision, 15 U.S.C. § 1640(c), not to immunize legal errors. 677 F.2d at 779. The TILA provision, however, expressly states that “an error of legal judgment with respect to a person’s obligations under this subchapter is not a bona fide error.” § 1640(c) (emphasis supplied). It also includes an illustrative list of errors that would constitute bona fide errors, including “clerical, calculation, computer malfunction and programming, and printing errors.” Id. By contrast, the FDCPA’s provision does not expressly remove legal mistakes from the realm of errors that can be considered bona fide, nor does it in any other way illustrate what types of mistakes can or cannot be deemed bona fide. Noting the distinction between the two statutory provisions, “a growing minority” of courts, Johnson, 305 F.3d at 631, including the Tenth Circuit, have concluded that mistakes of law can be considered bona fide errors under section 1692k(c). id. at 631-32 & n. 14 (so holding and collecting cases). Our own opinion in Jenkins v. Heintz, 124 F.3d 824, 832 n. 7 (7th Cir.1997), cert. denied, 523 U.S. 1022, 118 S.Ct. 1304, 140 L.Ed.2d 469 (1998), likewise notes that nothing in the language of the FDCPA bona fide error provision limits the reach of the defense to clerical errors and other mistakes not involving the exercise of legal judgment. Yet, as Jenkins itself pointed out, there was no evidence that the mistake at issue" } ]

[ { "docid": "12361410", "title": "", "text": "defendant’s counsel “[a]t a reasonable time before imposing sentence,” and under Rule 32(a)(1)(A), the sentencing judge must “determine that the defendant and the defendant’s counsel have had the opportunity to read and discuss” the PSI. If the comments of the defendant or his counsel or any information presented by them allege a factual inaccuracy in the PSI, Rule 32(c)(3)(D) directs the court to “make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” This finding or determination must then be reduced to writing and attached to any copy of the PSI thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D). Compliance with Rule 32(c)(3)(D) is mandatory. United States v. Bradley, 812 F.2d 774, 782 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987); United States v. Ursillo, 786 F.2d at 68-69. The government contends that a claim pursuant to Rule 32 may be raised only upon direct appeal and not by a motion under Rule 35. The government relies upon dicta in United States v. Huss, 520 F.2d 598, 602 (2d Cir.1975), to the effect that Rule 35 “does not even afford the means for correcting the failure of a district court to comply with Rule 32, Fed.R. Crim.P. in imposing sentence.” Huss, in turn, relied upon Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), which interpreted Rule 35 as narrowly limited to correcting a sentence beyond the statutory maximum, but as not allowing reexamination of “errors occurring at the trial or other proceedings prior to the imposition of sentence.” Huss, 520 F.2d at 602-03 (quoting Hill v. United States, 368 U.S. at 430, 82 S.Ct. at 472). The panel in Huss apparently overlooked the fact that Rule 35 had been amended in 1966 in response to Hill to allow an attack upon sentences imposed in an illegal manner within the time limits imposed for motions to reduce a sentence, as well as attacks" } ]

[ { "docid": "1456687", "title": "", "text": "v. Gomez, 831 F.2d 453, 455 (3rd Cir.1987). Rule 32(a)(1) and (c)(3)(D) provide in pertinent part: (a) Sentence. (1) Imposition of Sentence ... At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. ... ****** (D) If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or in part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. Fed.R.Crim.P. 32(a)(1), (c)(3)(D) (emphasis added). Here, Williams objects to the pre-sentence report because the second kilogram of cocaine should not have been considered in calculating his Guideline range as it was discovered after he agreed to cooperate with the DEA agents. Although the court inquired whether Williams wished to challenge any of the facts in the presen-tence report, it simply ignored Williams’ exceptions and continued with the sentencing proceedings. The dispute at issue here is the type contemplated by Rule 32(c)(3)(D). We find the district court erred when it relied on the information in the presentence report without resolving the disputed issue and sentencing Williams on inaccurate information. IV. Williams contends that the district court erred in failing to comply with Federal Rule of Criminal Procedure 11 before accepting his guilty plea. Specifically, Williams argues that the district court did not: inform him of the mandatory minimum term of supervised release that would be imposed; insure that his guilty plea was voluntary, and; insure that he was informed of the nature of his offense. From a thorough analysis of the record, we find" }, { "docid": "13230119", "title": "", "text": "Again, Stout urged the court to determine his offense severity rating and enter that rating in his presentence report on the ground that Stout had an interest in a correct presen-tence report. The court refused to determine whether his presentence report contained a correct offense severity rating. Instead, the court entered an order which stated that the court did not take the pre-sentence report’s offense severity rating into account in sentencing Stout and ordered the probation office to delete its estimate of Stout’s offense severity rating from the presentence report. Stout now appeals the district court’s decision, claiming that the district court violated Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. II Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure provides: This rule serves two purposes. First, it protects a defendant’s right to a fair sentencing hearing. E.g., United States v. Perez, 858 F.2d 1272, 1276 (7th Cir.1988); United States v. Carmel, 801 F.2d 997, 1000 (7th Cir.1986). Second, it ensures a clear record of the disposition of controverted facts in the presentence report, e.g., United States v. Ryan, 810 F.2d 650, 657 (7th Cir.1987); United States v. Reynolds, 801 F.2d 952, 957-58 (7th Cir.1986), which reduces the likelihood that later decisions concerning the defendant may be made on the basis of improper information, United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir.1986). If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. The procedures set forth in Rule 32(c)(3)(D) are mandatory, not discretionary, Blake v. United States, 841 F.2d 203, 207 (7th Cir.1988)," }, { "docid": "15131027", "title": "", "text": "See U.S.S.G. § 3E1.1, comment, (n.2). At sentencing, the district court provided Wach with an adequate opportunity to controvert the probation office’s assessment that he had not accepted responsibility for the offense. We cannot say that the court was clearly erroneous in crediting the probation office’s assessment over Wach’s protestations to the contrary. See 18 U.S.C. § 3742(e). III. Following Wach’s conviction, the probation office prepared a routine presentence report detailing his actions concerning the offense, his prior criminal convictions and background. Wach took exception to several statements in the presentence report, particularly the statement that he was the prime suspect in the homicide of his estranged wife. At the sentencing hearing, the district court stated that “this alleged murder is in no way going to effect what sentence Mr. Wach receives.” Rec. supp. vol. Ill at 4. However, this determination is not reflected in the presentence report. The procedure to object to information contained in a presentence report is prescribed by Fed.R.Crim.P. 32(c)(3)(D): If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. (emphasis supplied). Appending the pre-sentence report with the judge’s findings on controverted matters as required by Fed.R.Crim.P. 32(c)(3)(D) insures against the “manifest unfairness to a defendant if false or unreliable information is relied upon by the ... Bureau of Prisons, or the Parole Commission,” United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir.1989), in “critical determinations relating to custody or parole,” Amendments to the Federal Rules of Criminal Procedure, 97 F.R.D. 245, 308 (1983) (Advisory Committee Note). See United States v. Peterman," }, { "docid": "12808446", "title": "", "text": "available relevant information concerning the prisoner, including presentence investigation reports. See 18 U.S.C. § 4207 (1982) (repealed effective November 1, 1987, Pub.L. 98-473, tit. II, §~ 218(a)(5), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended). In part because the Commission and other correctional authorities rely on these reports, Rule 32(c)(3)(D) requires that if the defendant alleges that the report is factually inaccurate, the sentencing court must either make written findings concerning any matter controverted or state that that matter will not be taken into consideration at sentencing, and it must append to the report a copy of its determinations. Although a principal purpose of this Rule is to provide correctional authorities with a clear record of the court's treatment of such disputed matters, see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986); United States v. Eschweiler, 782 F.2d 1385, 1387-88 & n. 7 (7th Cir.1986); United States v. Petitto, 767 F.2d 607, 609 (9th Cir.1985), the Rule does not purport to prescribe how the nonjudicial authorities may treat the record it creates. Like other rules of federal criminal procedure, Rule 32 governs only proceedings in federal courts, not in agencies of the Executive Branch. See Fed.R. Crim.P. 1; Kramer v. Jenkins, 803 F.2d 896, 899 (7th Cir.1986), clamfied on reh q, 806 F.2d 140 (per curiam). Where, as in the present case, the sentencing court has chosen to comply with the Rule by disclaiming reliance on contested statements, the Commission is free to use the disclaimed portion of the report if it finds the information sufficiently accurate for its own purposes. See Kramer v. Jenkins, 803 F.2d at 900; cf. Billiteri v. United States Board of Parole, 541 F.2d 938, 944 (2d Cir.1976) (Commission may consider all matters bearing upon the prisoner's personal history and behavior, including unad-judicated charges and evidence of crimes of which he was acquitted). Unlike a finding of falsity, which might bind the Commission under familiar principles of res judica-ta, the court's mere refusal to rely on a statement reflects only its conclusion that it has found the information questionable or irrelevant for purposes" }, { "docid": "12134641", "title": "", "text": "him an evidentiary hearing or given him the opportunity to depose the persons the probation officer referred to in making his report. Consideration of claims of inaccuracies in a presentence report is governed by Fed.R. Crim.P. 32(c)(3)(D). Rule 32(c)(3)(D) provides in pertinent part as follows: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. “Strict compliance with this Rule is required, and ‘failure to comply will result in remand.’ ” United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987) (quoting United States v. Edwards, 800 F.2d 878, 881 (9th Cir.1986)). It is clear from the record that the court complied with these requirements. The court, after reading the material before it and hearing oral argument from both sides, found that there was a sufficient basis for belief in the accuracy of the statements in the presentence report. The question remains whether the district court should have held an evidentiary hearing to allow Frank Monaco to examine witnesses who provided information he asserts was inaccurate. We have not previously resolved the question whether an evi-dentiary hearing is required whenever a defendant asserts that the presentence report contains inaccurate statements. In United States v. Petitto, 767 F.2d 607, 611 (9th Cir.1985), we suggested that the issue whether an evidentiary hearing is necessary to allow adequate rebuttal to allegedly inaccurate statements in a pre-sentence report is left to the discretion of the district court. In Petitto, we were called upon to determine whether the district court had complied with Fed.R.Crim.P. 32(c)(3)(A) in conducting the sentencing proceedings. Rule 32(c)(3)(A) provides in pertinent part: At a reasonable time before imposing sentence the court shall permit the defendant and the defendant’s counsel to read the report of the presentence investigation." }, { "docid": "1387279", "title": "", "text": "the government did in fact fail to stand mute but for the recommendation of sentence. Not only did the prosecutor breach his promise but, when the fact that he was doing so was called to his attention by Travis’ counsel, the prosecutor persisted in breaching his promise. When an attorney represents the government of the United States and makes a promise of this kind, he must keep it. We are unable to condone such a breach. We therefore must vacate the sentence and remand for resentencing. We find that the circumstances do not merit remand to a different judge for resentencing. We have weighed the factors to be considered in deciding whether further proceedings should be conducted before a different judge and conclude that this case does not furnish the unusual circumstances required. United States v. Arnett, 628 F.2d at 1165. C. Compliance with Rule 32 Prior to sentencing, Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure requires the court to permit the defendant and his counsel access to the presentence investigation report and to provide them an opportunity to comment on that report. If there are allegations of factual inaccuracy in the report, Rule 32(c)(3)(D), Fed.R.Crim.P., provides: ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentenee investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. The purpose of Rule 32(c)(3)(D) is to ensure that a record is made as to the resolution of the controverted matters and to ensure that the resolution of those controversies comes to the attention of the agencies who utilize the presentence report. Advisory Committee Notes to Proposed Rule 32(c)(3)(D). Travis contends that the district court failed to comply with the provisions of Rule 32(c)(3)(D), Fed.R.Crim.P., in its disposition of his objections to the presentence report. On the basis of" }, { "docid": "12808445", "title": "", "text": "“any other charge for which the defendant was arrested after the commission of the offense for which the sentence was imposed.\" Plainly a civil contempt confinement is not within these categories, and the legislative history of this revision gives no indication whatever that Congress believed it was enacting any change affecting civil contempt confinement. See S.Rep. No. 225, 98th Cong., 2d Sess., 128-29, reprinted in 1984 USCCAN 3182, 8311-12. For all of the foregoing reasons, we conclude that § 3568 does not require that a person sentenced to prison for criminal contempt be given credit on that sentence for any time, prior to his indictment on that charge, that he spent in civil contempt. B. The Commission's Reliance on the Arocena Hearsay We also reject Ochoa's contentions that the Commission's reliance on the Arocena hearsay was improper because (1) Fed.R. Crim.P. 32(c)(3)(D) prohibits reliance on any material not relied on by the sentencing judge, and (2) due process prohibits reliance on hearsay. In making parole decisions, the Commission is required by statute to consider all available relevant information concerning the prisoner, including presentence investigation reports. See 18 U.S.C. § 4207 (1982) (repealed effective November 1, 1987, Pub.L. 98-473, tit. II, §~ 218(a)(5), 235(a)(1), 98 Stat. 2027, 2031 (1984), as amended). In part because the Commission and other correctional authorities rely on these reports, Rule 32(c)(3)(D) requires that if the defendant alleges that the report is factually inaccurate, the sentencing court must either make written findings concerning any matter controverted or state that that matter will not be taken into consideration at sentencing, and it must append to the report a copy of its determinations. Although a principal purpose of this Rule is to provide correctional authorities with a clear record of the court's treatment of such disputed matters, see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986); United States v. Eschweiler, 782 F.2d 1385, 1387-88 & n. 7 (7th Cir.1986); United States v. Petitto, 767 F.2d 607, 609 (9th Cir.1985), the Rule does not purport to prescribe how the nonjudicial authorities may treat the record it creates. Like" }, { "docid": "1998930", "title": "", "text": "dispute to be raised other than put it on the record. Thereafter Blanco was sentenced on the conspiracy count to 15 years and a $25,000 fine; on the cocaine distribution count to 15 years and a $25,000 fine; on those two counts to a special parole term of 3 years; and on the tax evasion count to 3 years. The prison terms run concurrently. Federal Rule of Criminal Procedure 32(c)(3)(D) requires a sentencing judge to make findings as to alleged factual inaccuracies in a defendant’s presentence investigation report or to explicitly disclaim reliance on the controverted facts. The rule, as applied to offenses committed before Nov. 1, 1987, provides: (D) If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. This rule requires that the determination or disclaimer be appended to the presentence report because the report is subsequently used by prison officials for confinement purposes and by the Parole Commission for purposes of release. See United States v. Katzin, 824 F.2d 234, 238 (3d Cir.1987). The Notes of Advisory Committee on Rules provides: Rule 32(c)(3)(D) Subdivision (c)(3)(D) is entirely new. It requires the sentencing court, as to each matter controverted, either to make a finding as to the accuracy of the challenged factual proposition or to determine that no reliance will be placed on that proposition at the time of sentencing. This new provision also requires that a record of this action accompany any copy of the report later made available to the Bureau of Prisons or Parole Commission. As noted above," }, { "docid": "2815156", "title": "", "text": "in limited cases certain information linked to the denial of a constitutional right cannot form the basis for sentencing.” United States v. Graves, 785 F.2d at 872; United States v. Jones, 640 F.2d 284, 286 (10th Cir.1981). The due process problem was addressed in the 1983 amendments to Rule 32 by the addition of a new subsection which specifically pertains to allegations of inaccurate information in the reports. The sentencing court is now given two options when the defendant alleges any factual inaccuracy. The court must either: (1) make a specific finding on the record concerning the disputed information; or (2) make a determination on the record that the contested matter will not be considered in determining the sentence. Fed.R.Crim.P. 32(c)(3)(D); see also United States v. Golightly, 811 F.2d 1366, 1367 (10th Cir.1987). This new provision also recognizes that the presentence report is regularly used by the Bureau of Prisons and the Parole Commission. See 1983 Amendment Committee Notes, Fed.R.Crim.P. 32. Consequently, Rule 32(c)(3)(D) requires that a written record of the court’s findings or determinations be attached to the presentence report before it is made available to prison or parole authorities. Nothing in the record before this court indicates that the trial judge failed to satisfy the requirements of Rule 32(c)(3)(D). The transcript of the sentencing hearing shows that the judge, on two separate occasions, unequivocally stated that he would not consider the alleged inaccurate factual statements in the report. (Rec., Vol. IV, pp. 15, 21.) Furthermore, nothing in the record shows that the sentencing court failed to append a written determination to the report. The record clearly shows that the trial court disregarded those portions of appellant’s presentence report which purportedly contained inaccurate information. Thus, it is irrelevant on which party the trial court imposed the burden of proving the accuracy or inaccuracy of the information. AFFIRMED. . The Count I of the original indictment stated: “Beginning on or before August 27,1984, ... the defendant, TIMOTHY PAUL STRAYER aka TIM RYAN aka MARCO ROMAN, unlawfully, willfully, knowingly and intentionally, combined, conspired, confederated, and agreed together with one another and" }, { "docid": "12539743", "title": "", "text": "serve as the grounds for a due process claim. Aside from the restructuring by the court of his sentence, defendant cites no other evidence in support of his claim, other than the fact that the district court judge did not allow him to finish a statement in court. We believe defendant has failed to present enough evidence to give rise to the Pearce presumption, or serve as legitimate grounds for a due process claim. B. Rule 32(c)(3)(D) Defendant also asserts that the district court erred in not ordering corrections to the presentence investigation report in compliance with Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure. Rule 32(c)(3)(D) provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. (Emphasis added). During his sentencing hearing, defendant alleged that the report erroneously employed the word “assault” to describe an incident involving the defendant in prison. The report stated: On April 24, 1989, Mr. Soto assaulted another inmate who incurred minor injuries in the head and chest. Disciplinary action was taken whereby 100 days of good time were forfeited. On June 13, 1989 he was given a disciplinary transfer to Memphis, Federal Correctional Institution where he is presently serving his sentence. Defendant submits that the incident is better described as a “response to violent provocation at a prison brawl” because what actually happened was that he got into a fight with a man who insulted his mother who had recently passed away. Defendant also alleged that the report failed to make any reference to the decision by this court which reversed the" }, { "docid": "13230120", "title": "", "text": "report, e.g., United States v. Ryan, 810 F.2d 650, 657 (7th Cir.1987); United States v. Reynolds, 801 F.2d 952, 957-58 (7th Cir.1986), which reduces the likelihood that later decisions concerning the defendant may be made on the basis of improper information, United States v. Eschweiler, 782 F.2d 1385, 1387 (7th Cir.1986). If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. The procedures set forth in Rule 32(c)(3)(D) are mandatory, not discretionary, Blake v. United States, 841 F.2d 203, 207 (7th Cir.1988), and our court has been reluctant to characterize any violations of the rule as harmless, Johnson v. United States, 805 F.2d 1284, 1285 (7th Cir.1986). If the district court fails to resolve a factual dispute or determine that it will not use the controverted fact in sentencing, the defendant is entitled to be resentenced. See, e.g., United States v. Brown, 870 F.2d 1354, 1361 (7th Cir.1989); United States v. Hamm, 786 F.2d 804, 808 (7th Cir.1986). Through his post-trial motions, Stout informed the district court that the the probation office’s estimate of his offense severity rating contained in his pre-sentence report was allegedly incorrect. Stout thus argues that under Rule 32(c)(3)(D), the district court should have held a hearing to determine his correct offense severity rating and placed that rating in his presentence report. After thoroughly reviewing the record, we reject Stout’s argument and find that the district court complied with the requirements of Rule 32(c)(3)(D). The district court held two hearings concerning Stout’s allegation that his offense severity rating was incorrect. After the second" }, { "docid": "1456686", "title": "", "text": "an information to enhance Williams’ sentence, it is not surprising that the district court did not: inquire whether Williams affirmed or denied the prior conviction alleged by the government; inform Williams that if he did not challenge the conviction before sentencing he could not challenge it later; or file a written denial under 21 U.S.C. § 851(c)(1). Since these procedures are mandatory, Williams must be resentenced in accordance with Section 851. III. Williams contends that at the sentencing hearing, the district court listened to his challenges pertaining to information in the presentence report but ignored them. Williams argues that the district court failed to make a finding as to the allegations in dispute as they were not taken into account as required under Federal Rule of Criminal Procedure 32(c)(3)(D). Whenever a defendant disputes a fact included in a presentence report, Rule 32(c)(3)(D) requires that the sentencing court either resolve the dispute, or determine that it will not rely on the disputed material. See United States v. Urian, 858 F.2d 124, 127 (3rd Cir.1988); United States v. Gomez, 831 F.2d 453, 455 (3rd Cir.1987). Rule 32(a)(1) and (c)(3)(D) provide in pertinent part: (a) Sentence. (1) Imposition of Sentence ... At the sentencing hearing, the court shall afford the counsel for the defendant and the attorney for the Government an opportunity to comment upon the probation officer’s determination and on other matters relating to the appropriate sentence. ... ****** (D) If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or in part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. Fed.R.Crim.P. 32(a)(1), (c)(3)(D) (emphasis added). Here, Williams objects" }, { "docid": "23617951", "title": "", "text": "evidence in aggravation included evidence of uncharged conduct the fault lies with his attorney and himself, and certainly not with the court or the prosecutor. Because Coonce failed to give any valid, much less any legal, reason for the court to grant his requested withdrawal of his plea, we affirm the court’s denial of his motion to do so. C. Factual Finding as to Conspiracy After his motion to withdraw the guilty plea was denied, the defendant alleged that portions of the PSR were factually inaccurate. When a defendant makes such claims Federal Rule of Criminal Procedure 32(c)(3)(D) requires the court to either (1) make a finding as to the allegation, or (2) determine that no finding is necessary because the challénged fact will not be taken into account in sentencing. This rule serves a dual purpose. First, it protects a defendant’s due process right to be sentenced only on the basis of accurate information. United States v. Canino, 949 F.2d 928, 950 (7th Cir.1991); United States v. Montoya, 891 F.2d 1273, 1279 (7th Cir.1989). Second, by requiring the court to append a written copy of its . findings and determinations to the PSR it provides a clear record of the resolution of disputed facts for appellate courts and agencies such as the Parole Commission, which may later rely on the PSR. Montoya, 891 F.2d at 1279; United States v. Moran, 845 F.2d 135, 138 (7th Cir.1988). In order to merit resentencing under Rule 32(c)(3)(D), a defendant must demonstrate that (1) the allegations of inaccuracy were before the district court, and (2) the court failed to make findings on the controverted matters or determine that they would not be used in sentencing. Canino, 949 F.2d at 950. Coonce argues that the court did not comply with Rule 32 when it neglected to make a factual finding as to his involvement in the agents’ criminal enterprise. In his pleading entitled “Allegations of Factual Inaccuracies Contained Under Pre-Sentence Report” the defendant denied that he had engaged in or organized a conspiracy or criminal enterprise with his agents. He disagreed with two portions" }, { "docid": "10850573", "title": "", "text": "at trial. The only apparent probative value of Robbins’ statement was to link Garbett to the residence at 6100 S.W. 88th Street. Because there was considerable evidence in addition to this statement linking Garbett to the residence, Robbins’ statement was at most merely cumulative evidence of ownership. We find no plain error. Sentencing Hearing Garbett argues that the district court erred in failing to resolve certain disputed issues of fact that he raised at the sentencing hearing. Fed.R.Crim.P. 32(c)(8)(D) provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons. Specifically, Garbett argues that his counsel informed the district court that the presentence investigation report contained several errors that needed to be corrected. The district court, however, proceeded with sentencing without making the required findings of fact or determination that such findings were unnecessary. The government argues that the district court implicitly ruled against Garbett’s objections because the district court found no reason not to impose sentence. Fed.R.Crim.P. 32(c)(3)(D) requires a district court to do more than implicitly rule against a defendant. It establishes a mandatory procedure for resolving factual disputes at the sentencing phase of a trial. Such a procedure is necessary because of the great reliance placed on presentence investigation reports by courts and the Bureau of Prisons and the Parole Commission. See Poor Thunder v. United States, 810 F.2d 817, 824 (8th Cir.1987). Because the district court did not follow the procedure required by Fed.R.Crim.P. 32(c)(3)(D), we remand this case to the district court for further proceedings. On remand, the district court should make" }, { "docid": "1998933", "title": "", "text": "to the attention of the Bureau or Commission when these agencies utilize the presentence investigation report. In current practice, “less than one-fourth of the district courts (twenty of ninety-two) communicate to the correctional agencies the defendant’s challenges to information in the presentence report and the resolution of these challenges.” Fennell & Hall, supra, at 1680. New subdivision (c)(3)(D) does not impose an onerous burden. It does not even require the preparation of a transcript. As is now the practice in some courts, these findings and determinations can be simply entered onto a form which is then appended to the report. Given these post-sentencing uses of the presentence investigative report, courts have strictly enforced the mandatory language of this rule requiring that the sentencing judge either make a finding as to the controverted fact or disclaim reliance on the fact for sentencing. See e.g. United States v. Bradley, 812 F.2d 774, 782 (2d Cir.1987) (Mandatory character of Fed.R. Crim.P. 32(c)(3)(D) “directs the sentencing judge either to make findings with respect to the alleged inaccuracies in the report or explicitly to state that he did not consider the contested matters in his determination of sentence.”); United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir.1988) (“Strict compliance with the Rule is required, and ‘failure to comply will result in remand’ ”) (quoting United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987), quoting United States v. Edwards, 800 F.2d 878, 881 (9th Cir.1986)). Furthermore, the rule requires that the factual determination or disclaimer be attached as an appendix to the report. In United States v. Gomez, 831 F.2d 453, 455 (3d Cir.1987), this court stated: Rule 32(c)(3)(D) is phrased in mandatory language. If the district court fails to make findings as to disputed facts, it must make a determination that those disputed facts will not be taken into account. In Gomez, this court held that Rule 32(c)(3)(D) is triggered by a presentenee report which contains concededly accurate facts which create an inaccurate factual inference. The Gomez report stated: [according to the Government, the highest level of culpability in this case is attributed" }, { "docid": "8376982", "title": "", "text": "in Blanco, 884 F.2d at 1580. The version of Rule 32(c)(3)(D) applicable to the offenses Furst committed provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D) (rule applicable to offenses committed prior to Nov. 1, 1987). We have written that this rule serves two important purposes. First, it ensures that the sentencing judge has an accurate PSI report to rely upon. See United States v. Rosa, 891 F.2d 1063, 1070 (3d Cir.1989) (Rosa I); Gomez, 831 F.2d at 457. Second, it guarantees that the Bureau of Prisons and the Parole Commission, both of which rely heavily upon the PSI report, make decisions entrusted to them concerning confinement and conditions of release based upon accurate information. See Blanco, 884 F.2d at 1579-80; Gomez, 831 F.2d at 457. Arguing that Rule 32(c)(3)(D) compels us to vacate his sentence, Furst first contends that the district court should have resolved his objections concerning the Bank’s victim impact statement or expressly disclaimed reliance upon it. Furst does not dispute that the version of Federal Rule of Criminal Procedure 32(c)(2)(C) applicable to his offenses permits the district court to consider a victim impact statement. Instead, he argues that the Bank’s victim impact statement impermissibly refers to him as a thief, despite this Court’s earlier reversal of the only two embezzlement counts for which he was convicted. The government responds to Furst’s argument by noting that the district court stated on the record at sentencing that it viewed both the Bank’s victim impact statement and Furst’s" }, { "docid": "4198992", "title": "", "text": "Cureton’s argument must be read as asserting that the district court violated Rule 32(c)(1), and not old Rule 32(c)(3)(D). Like its predecessor, Rule 32(c)(1) requires: For each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons. Fed.R.CrimP. 32(c)(1). However, instead of expressly limiting itself to objections to factual inaccuracies, Rule 32(c)(l)’s use of “matter controverted” refers to all of the defendant’s objections to the presentence report under Rule 32(b)(6)(B). Thus, to the extent the defendant raises challenges “to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the pre-sentence report,” Fed.R.CrimP. 32(b)(6)(B), the district court must either make a finding with respect to each challenge or a determination that no finding is necessary, and it must append a written record of these findings and determinations to the presenteneing report. Where, as here, a district court attaches the transcript of the sentencing hearing to the presentencing report, we have held that Rule 32’s requirement that the district court’s findings be in writing and appended to the report are satisfied so long as the district court made adequate findings at the hearing concerning the defendant’s objections to the presentencing report. United States v. Pless, 982 F.2d 1118, 1129 (7th Cir.1992). Thus, in addressing Cureton’s arguments, we must determine whether at the sentencing hearing the district court made sufficient findings with respect to Cureton’s fourth and fifth objections. We have held that Rule 32’s requirement that the district court make specific written findings concerning a defendant’s objections to the presentencing report serves two important functions: (1) ensuring that the district court addresses all of the defendant’s objections prior to sentencing, and (2) providing a record of the resolution of the defendant’s objections for the appellate court, prison officials, or other authorities that may later" }, { "docid": "8376981", "title": "", "text": "3231 (West 1985). III. We shall examine each of the three issues Furst raises in turn. A. Furst maintains that the district court erred in failing to resolve or expressly disclaim reliance upon factual disputes concerning (1) the Bank’s victim impact statement and (2) the Probation Office’s estimates of Furst’s parole eligibility and guidelines sentence range as is required under Federal Rule of Criminal Procedure 32(c)(3)(D). Our review of whether the district court properly complied with the mandate of Federal Rule of Criminal Procedure 32(c)(3)(D) is plenary. See United States v. Blanco, 884 F.2d 1577, 1580 (3d Cir.1989) (“[Cjourts have strictly enforced the mandatory language of this rule requiring that the sentencing judge either make a finding as to the controverted fact or disclaim reliance on the fact for sentencing.”); United States v. Gomez, 831 F.2d 453, 455 (3d Cir.1987) (“Rule 32(c)(3)(D) is phrased in mandatory language. If the district court fails to make findings as to disputed facts, it must make a determination that those disputed facts will not be taken into account.”), quoted in Blanco, 884 F.2d at 1580. The version of Rule 32(c)(3)(D) applicable to the offenses Furst committed provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D) (rule applicable to offenses committed prior to Nov. 1, 1987). We have written that this rule serves two important purposes. First, it ensures that the sentencing judge has an accurate PSI report to rely upon. See United States v. Rosa, 891 F.2d 1063, 1070 (3d Cir.1989) (Rosa I);" }, { "docid": "3961475", "title": "", "text": "making his sentencing determination. Nevertheless, this court found that the judge had not totally complied with the rule because he had not appended to the PSI a written record of his determination. We held that the appropriate remedy for that violation was a “remand with directions that the trial court cause its determination that it did not consider the challenged allegations in imposing sentence to be appended, in a written order, to the pre-sentence investigation report.” Id. at 1394. Accordingly, we REVERSE the district court’s decision that petitioner does not have a valid Section 2255 claim, and we REMAND to the district court for it to prepare a written record of its nonreliance on the disputed matters in the PSI and to send the record to the appropriate authorities for attachment to the PSI. REVERSED AND REMANDED. . At the time of sentencing the district court stated to defense counsel: \"[T]he matters that you’ve alluded to in that particular motion and memorandum are not considered by the Court in reaching its sentence in this case.” . Rule 32(c)(3)(D) provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Fed.R.Crim.P. 32(c)(3)(D) (emphasis added). .A number of courts have held that violations of Rule 32(c)(3)(D) may be raised pursuant to the pre-1987 version of Rule 35 of the Federal Rules of Criminal Procedure, which provided for challenges to sentences \"imposed in an illegal manner.” See, e.g., United States v. Katzin, 824 F.2d 234, 237-38 (3d Cir.1987); United States v. Santamaria, 788 F.2d 824, 828-29" }, { "docid": "23237621", "title": "", "text": "acquittals occur on RICO counts implicating the special and distinct requirements of that statute, there is no basis for reversal of the assertedly offensive guilty verdicts. F. Sentencing Matters. Defendant Tung Kuei-Sen contends that the district court failed, in sentencing Tung, to comply with Fed.R. Crim.P. 32(c)(3)(D), which provides: If the comments of the defendant and the defendant’s counsel or testimony or other information introduced by them allege any factual inaccuracy in the pre-sentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission. Tung accordingly seeks “remand [ ] for a hearing on the allegations contained in the presentence report and for sentencing.” Defendant George Qi Lu contends that he contested allegations in his presentence report and requested a hearing with respect to them which hearing the district court improperly denied. He requests vacation of his sentence and remand for a hearing. Our review of the transcript of the sentencing hearing does not indicate any explicit, on-the-record compliance with Rule 32(c)(3)(D) with respect to these defendants in the course of that hearing, and the government does not contend in its brief that there has been such compliance, which is mandatory in this circuit. United States v. Weichert, 836 F.2d 769, 771 (2d Cir. 1988); United States v. Bradley, 812 F.2d 774, 781-82 (2d Cir.), cert. denied, — U.S. —, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987); United States v. Ursillo, 786 F.2d 66, 71 (2d Cir.1986). Out of an abundance of caution, we accordingly remand for findings or determinations as to these defendants pursuant to Fed.R.Crim.P. 32(c)(3)(D). If the district court elects to make findings as to any controverted allegations in either of these defendants' presentence reports," } ]